Category Archives: employee policies

A Lesson on Politics in the Office

ThinkstockPhotos-153920586Some of the biggest events at this week’s SHRM 2016 Annual Convention and Exposition had little to do with HR. One was a concert Tuesday night by the band Train. The other was a highly entertaining discussion about politics between pundits Paul Begala and Tucker Carlson.

I don’t know about Train — I didn’t go, but it’s hard to imagine that the performance had much instructive value. On reflection, though, I think Begala and Carlson had a lesson for HR practitioners.

They didn’t make their point explicitly, but rather by modeling a healthy way for colleagues to disagree. The takeaway: Political discussions — including those playing out every day in company lunchrooms — don’t have to be divisive.

It’s a natural concern, particularly this year. An unusually heated and dramatic presidential race has passions running high, and employers naturally don’t want workers distracted by conflict in the workplace.

A SHRM study released as the conference began Sunday in Washington, D.C., found 26 percent of HR professionals responding said employees are more vocal about their political opinions this year. The survey found 72 percent of employers discourage political activity in the workplace, but only 24 percent have a written policy.

Companies can ban bullying or active campaigning in the office. But a SHRM news release quotes Edward Yost, an employee-relations expert with the organization, saying they generally “cannot have policies that prohibit all political discussions,” without running into issues with the National Labor Relations Board.

Here’s where your company culture gets tested. If workers are going to disagree on political issues, you want them to do it the way Begala and Carlson do — with empathy, humor and respect for other views.

Begala is a former adviser to President Bill Clinton and longtime Democratic political consultant. Carlson is a commentator on Fox News and founder of the conservative news site The Daily Caller. The two co-hosted CNN’s political talk show “Crossfire” more than a decade ago and often appear together on stage as they did Tuesday morning at the SHRM conference.

In some ways their presentation was a comedy show, with the men gently poking fun at each other — and themselves. But they had serious and substantive disagreements.

Carlson’s main point was that the nation’s elites on both sides of the aisle have missed the rise of middle-class economic anxiety that fueled the rise of presumptive GOP nominee Donald J. Trump. And he freely included people like himself in that blame.

“Where I live, there is literally no downside to mass immigration,” because high-income jobs are not threatened, he said. “Immigration is a no-cost way to feel good in my neighborhood.”

Begala agreed that both parties have “failed a whole lot of people in Youngstown,” using that city as a proxy for white middle-class families whose livelihoods are threatened by a changing economy. But the answer is not to demonize immigrants, as he contends Trump is doing. Instead, “we have got to find a way to lift up the poor and middle class.”

Both men acknowledged each other’s perspective and recognized that neither Democrats nor Republicans had all the answers — basic elements of any healthy political discussion.

The nation’s polarized political environment has led many to feel “a contempt for people who disagree with them,” Carlson said. “There should be a space for sincere, honorable disagreement.”

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Pawternity, Could it Happen Here?

A good bit of attention has been paid recently to a phenomenon taking shape across the pond.

521075238 -- petsIt seems a growing number of companies in the United Kingdom — mostly smaller start-ups — are beginning to offer their employees what’s being called pawternity leave; i.e., paid-time-off to bond with their new four-legged furry friends or tend to their old ones.

This piece that appeared on the appropriately-named website, “The Bark: Dog is My Co-Pilot,” mentions several employers that have gone this route — Mars Petcare, BitSol Solutions and Now What.

At Manchester-based IT company BitSol, company owner Greg Buchanan says pawternity is actually good for the bottom line, according to this piece in USA Today.

“You know, we are quite sympathetic to pets in the U.K.; we’re a pet-loving country,” he tells the paper. “Obviously we take it on a case-by-case [basis]. If somebody’s asking for time off for a goldfish, no, no — then it’s not quite what we set out for.”

He also cautions that “[i]f you do give time off for pawternity leave, you are limiting the number of people available to you.” However, he adds, “I believe morale of staff definitely improves and they actually want to work harder for you.”

The Bark piece puts the number of pet owners in the U.K. who have been offered time off to care for Fido or Fluffy at nearly one in 20. It also mentions that Mars Petcare, a pet-care company, was one of the first employers to institute a formal pawternity policy, now allowing its employees 10 hours of paid leave when adding a new pet to the family.

Based on his recent column on the U.K trend toward better treatment of its workers, I reached out to HRE‘s talent management columnist, Peter Cappelli (George W. Taylor professor of management and director of the Center for Human Resources at The Wharton School of the University of Pennsylvania in Philadelphia), to see if this four-legged phenomenon could happen here.

“I’d say the U.S. model of just giving people personal time for whatever is important to them makes more sense than trying to define legitimate reasons for leave,” he told me. But he did seem impressed with how far the Brits will go in their efforts to accommodate pet owners.

Personally, I have been thinking about getting a dog lately. And being single, I’m concerned about what will get chewed or stained while I’m at work. Not even sure the effort would be worth it without a benefit like this.

But …… moving to London seems like a pretty drastic solution.

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New Trade Secrets Law: The HR Angle

It’s incredibly rare these days for a proposed law to receive near-unanimous backing in the U.S. House and Senate but, by George, our nation’s politicians managed to pull off this miraculous feat recently, which culminated with President Obama affixing his signature yesterday to the Defend Trade Secrets Act.

The new law puts trade secrets on par with patents, copyrights and trademarks, which are already protected under federal law. The Defend Trade Secrets Act provides a “uniform set of rules for trade secret protection” throughout the United States (although it does not replace trade secret laws passed by individual states). The upshot is that companies whose trade secrets were violated in multiple states can now file suit in a federal court rather than trying to determine which state may (or may not) provide the best legal remedy.

Trade secret claims have long been a key component of employee non-compete agreement lawsuits, writes Chris Marquardt, a partner at Alston & Bird’s labor and employment law group. For this reason, the new federal law “not only gives employers another tool to protect their confidential business information, but will also likely shift many routine employment-agreement lawsuits into the federal court system,” he writes.

Employee non-compete agreements can vary widely from state to state and the new law is written in such a way as to recognize that “the statute should not override state laws” on such agreements, Marquardt writes. However, he adds, “only time will tell how broadly federal courts interpret the new law and how willing they are to use it to prevent employees from accepting new jobs in competition with a former employer.”

Brett Coburn, also a partner with Alston & Bird, writes that one of the less-frequently discussed aspects of the new law is one that will impact nearly all employers: “The law grants both criminal and civil immunity under both federal and state trade secrets laws to individuals who disclose a company’s trade secrets to the government” if the person has reason to suspect that a legal violation has occurred. It also requires employers to notify employees of this immunity “in any agreements that govern the use of trade secrets or other confidential information.”

To ensure compliance, Coburn writes, HR leaders and legal counsel will need to reexamine their company’s restrictive covenant and nondisclosure agreements, as well as policies regarding the protection of confidential information and employee whistleblower activities.

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HR’s Role in Aiding Ailing Employees

We all know this standard bit of wisdom: When you’re told you have a major disease — like cancer — one of the first things you should do is get a second opinion from another doctor. However, employees at some organizations may have an easier time getting that second opinion than their counterparts at other companies, according to a recent survey from the Northeast Business Group on Health.

86507521The NEBGH conducted a benchmarking survey on employers and cancer care with self-insured companies representing 1.2 million covered employees, along with interviews with cancer experts and benefits professionals and two workshops held last year. The resulting report, Employers and Cancer Care Quality: A Closer Look, finds that nearly half the employers do not offer third-party second opinion services — a finding the NEBGH says is important not only because data shows that second opinions can often reveal an initial misdiagnosis or point to a different treatment path, but because health plan-directed second opinions are sometimes mistrusted by employees.

Less than half the survey respondents say they have a network of high-performing oncology providers in place, and results also show there are “variations and gaps” in the non-clinical support services they offer, such as treatment navigation, emotional counseling and financial-planning services.

“Another major gap highlighted in our work is the lack of accessible, organized and systematic communication efforts directed to employees [diagnosed with cancer],” says Dr. Jeremy Nobel, executive director of NEBGH’s Solutions Center, which oversaw the report.

Most employees diagnosed with cancer choose to continue working during treatment, partly because doing so “helps them cope,” according to a survey conducted last year by Harris Interactive on behalf of the group Cancer and Careers. More employees are choosing to share their cancer diagnosis with their supervisors, according to Brenna Haviland Shebel, director of the National Business Group on Health’s Institute on Healthcare Costs and Solutions. It’s incumbent upon HR, these experts say, to ensure that employees who are waging battle against cancer are equipped with the knowledge and support necessary to get what they need while fighting to regain their health.

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Employee Handbooks Under Scrutiny

OK, pop quiz: What’s the difference between these two employee-handbook policies?

  1. “Be respectful to the company, other employees, customers, partners, and competitors.”
  2. “Each employee is expected to work in a cooperative manner with management/supervision, co-workers, customers and vendors.”

One, according to the National Labor Relations Board, is legal. The other is not. (I’ll tell you which was which in a minute.)

Don’t fret if you have trouble seeing the difference. That’s why we have lawyers. And that’s why there’s plenty of work for them as the ThinkstockPhotos-517631808NLRB cracks down on employee-handbook language — including provisions that once were standard — that it says is too broad.

In a series of rulings the agency has told companies to revise policies that infringe on rights of workers — unionized or not — to talk to each other about the company in person or through social media.

“Employers are really waking up to this,” says Lauri F. Rasnick, a member of the firm at Epstein Becker Green of New York. “For a long time, nonunionized employers didn’t give a lot of thought to NLRB decisions.”

The U.S. Chamber of Commerce contends the effort is part of an anti-employer crusade. In a highly critical December report titled “Theater of the Absurd: The NLRB Takes on the Employee Handbook,” the trade group argues that the agency “has undertaken a campaign to outlaw heretofore uncontroversial rules found in employee handbooks and in employers’ social media policies.”

Worse, according to the chamber: the NLRB’s guidance to employers often is contradictory, creating “a morass of confusion that leaves employers wondering just how they are to exercise effective control over their workplaces.”

Rasnick agrees. “I do think that’s part of the challenge for employers,” she says, noting that NLRB decisions aren’t always consistent. And they are continuing to evolve, with confidentiality provisions attracting more scrutiny in recent rulings, she says.

The latest headline came this month after an administrative law judge ruled that Quicken Loans and five related companies had illegal rules in its employee handbook, which it calls “The Big Book.” (Despite the Quicken name, the companies are not owned by software company Intuit; they’re led by Dan Gilbert, majority owner of the Cleveland Cavaliers.)

To the untutored eye, many of the rules seem pretty standard stuff. An example: “Think before you Tweet. Or post, comment or pin. What you share can live forever. If it doesn’t belong on the front page of The New York Times, don’t put it online.”

The problem with this rule, wrote judge David I. Goldman in his April 7 ruling:  Although the policy doesn’t tell workers they can’t bad-mouth the company online, “an employee considering this suggestion would reasonably feel chilled by this rule from expressing negative (but protected) information” about the employer.

The companies are appealing the decision to the full board. But there’s little indication that the NLRB is letting up on the effort.

Back to our pop quiz. Of those two employee-handbook policies, the first (“be respectful”) is illegal, according to the NLRB’s general counsel. The second (“work in a cooperative manner”) is OK.

The problem is in telling workers they must be “respectful” to management, as well as customers and others, wrote Richard F. Griffin Jr. in a memo last year. An employee might reasonably see that as a ban on complaining about the company, he wrote.

The second example is legal, Griffin wrote. “Employees would reasonably understand that it is stating the employer’s legitimate expectation that employees work together in an atmosphere of civility.”

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Survey: Employees Only ‘Moderately’ Engaged

The good news, according to the Society for Human Resource Management’s latest Employee Job Satisfaction and Engagement Survey, is that employee satisfaction is at its highest level in 10 years, with 88 percent of respondents saying they’re satisfied with their jobs. The bad news? The number of employees who say they plan to look outside their current company for a new job is also up, at 45 percent. SHRM announced the survey results at its Talent Management Conference in Orlando earlier this week.

The keyword for holding on to employees is spelled R-E-S-P-E-C-T: 67 percent of the 600 employees surveyed ranked “respectful treatment of all employees at all levels” as “very important” to job satisfaction, followed by overall compensation/pay and benefits, job security and “opportunities to use skills and abilities,” which tied for fifth place with “trust between employees and senior management.”

As for employee engagement, actual engagement levels are little-changed from last year’s survey, said Evren Esen, SHRM’s director of survey programs, coming in at 3.8 out of 5 with 5 being the highest, showing that employees are “moderately engaged.” Satisfaction and engagement aren’t always aligned, with engagement typically tied to employees’ connection and commitment to their work and organization, she said.

One of the top factors affecting employee engagement are the engagement level of their coworkers, said Esen. “If employees don’t see those around them as being engaged, this will impact the overall level of engagement in the organization,” she said.

Being engaged means feeling that you’re an important part of the organization’s mission, she said.

“The opportunity to use their skills and competencies is of continuing importance to employees – it gives them a sense of engagement and pride,” said Esen. HR should develop a “skills matrix” for employees to get a better sense of “what they do well, not just what they do” in their everyday jobs, she said. This will make it easier to determine if there are other ways employees could be contributing and – by extension – feel a tighter connection with the organization.

“Nobody is going to feel sustained doing the same job over and over,” she said.

Dissatisfaction with their compensation and benefits was a top reason why employees plan to look for new jobs, the survey finds. Sixty three percent of employees chose overall compensation as “very important” to them, yet only 23 percent described themselves as “very satisfied” with their own compensation. Similarly, 60 percent chose overall benefits as very important, but only 27 percent said they were very satisfied with their benefits.

“Companies have only reinstated some of the cuts to benefits they made during the Great Recession,” said Esen. “Organizations really need to focus on what benefits their employees really want, and offer the ones that appeal to all demographics of their employee base.”

HR must also keep in mind the needs of a multigenerational workforce, she said.

“Millennials want their ideas to be valued and not dismissed just because they’re younger and less-experienced,” said Esen. “Boomers want to be valued for their experience, but often feel they’re not sufficiently valued for it. It’s important to keep both groups satisfied.”

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Free Speech, Politics and the Workplace

Could employees face workplace retribution for attending a Donald J. Trump rally? (photo by Gage Skidmore)

Could employees face workplace retribution for attending a Donald J. Trump rally? (photo by Gage Skidmore)

Given the tenor of this very unique election season, it’s entirely possible that chats between colleagues that stray into politics could end up causing the water in the office water cooler to hit boiling temperatures. So maybe it’s understandable that HR might want to keep conversations and activities related to political causes as far from the workplace as possible. But in a number of cases workers have complained that they were fired because of their political beliefs, and Justin Danhof wants to do something about it.

Danhof is the general counsel for the National Center for Public Policy and director of its Employee Conscience Protection Project. The organization, which describes itself as conservative, says all employees – conservative and liberal – deserve the right to engage in political and civic activities outside the workplace without fear of retribution from their employers. It is targeting large, publicly traded corporations to commit to protecting their employees from such discrimination and has so far convinced 13 major employers – including Home Depot, Walmart, General Electric, Pfizer and Visa – to sign on.

“Our mission is to expand freedom wherever we see corporate culture limiting freedom,” says Danhof.

The organization was inspired to act after Brendan Eich, the CEO of technology firm Mozilla, resigned his post in the wake of an uproar after it was discovered that he had donated funds in support of California’s Proposition 8, a state referendum that sought to define marriage as between a man and a woman.

“The activists demanded his head and he ended up leaving Mozilla of his own accord. We sat back and said, how can this happen in America?”

The episode led Danhof and his group to delve deeper into the protections afforded Americans who engage in political activity outside the workplace. They found that only half of working Americans live in jurisdictions that afford even a limited measure of protection against employer retaliation.

Danhof says this lack of protection dampens employees’ willingness to engage in civic participation. “Here we live in the greatest country in the world, and yet so few people participate in the political process that we actually cheer when six out of 10 people show up to vote,” he says. “That’s pathetic.”

Danhof’s group approaches large, publicly traded companies with operations in multiple jurisdictions and asks them to adopt a policy that simply states that no adverse action will be taken against employees for engaging in private political activity.

“We don’t think people should ever lose their jobs because of their political beliefs,” says Danhof.

Of course, some political beliefs are more controversial than others. Suppose an employee spots his supervisor participating in a rally for white supremacists, for example?

Publicly traded companies have a fiduciary duty to protect shareholders, says Danhof, and have the right to take action against an employee whose actions potentially damage the company’s reputation. That said, he adds, the issue isn’t always clear-cut.

“There’s a large swath of the American public right now that believes if you show up at a rally for a certain political candidate — and I’m not going to name names — then that’s a hate activity,” he says.

The Employee Conscience Protection Project is currently trying to get Starbucks Corp. to sign on, and will continue urging other publicly traded companies to do the same. Large, publicly traded companies typically have multistate operations, including in jurisdictions where employees have no legal protection from retaliation, says Danhof, and can serve as examples to other companies. “We also prefer to engage the free market on this, rather than trying to get state governments to pass laws,” he says.

Many employees believe – erroneously – that the First Amendment protects their right to speak freely when, in fact, that protection does not necessarily extend to the workplace, says Danhof.

“We think a Tea Party supporter should be able to work for a Bernie Sanders supporter, or vice versa, and not have to be fearful about potentially losing their job,” he says.

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NLRB Rules Against Chipotle

In yet another case of a corporate social media policy found to have violated employees’ rights to engage in protected concerted activity, an administrative law judge of the National Labor Relations Board has ordered Chipotle Services LLC to rehire former employee James Kennedy, pay him back wages and post signs in its workplaces notifying employees that its former social media policies violated labor law.

Kennedy, who worked at a Chipotle restaurant in the Philadelphia suburb of Havertown, Pa., found himself under management’s spotlight after he replied to a customer who tweeted “Free chipotle is the best thanks” with “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?”

After viewing the tweet, Chipotle national social media strategist Shannon Kyllo alerted regional manager Thomas Clark, who oversaw the location where Kennedy worked. Clark subsequently asked Kennedy to review Chipotle’s social media policy and delete the tweet, which he did.

Kennedy was later fired for what his supervisor, Jennifer Cruz, said was insubordination during a meeting at which he was asked to stop collecting signatures on a petition that addressed allegedly poor working conditions at Chipotle, including a lack of adequate meal and break times. Cruz later testified at the board proceedings that she feared for her safety during the meeting because Kennedy (an Army veteran who’d served three tours of combat duty) raised his voice and she feared he would become violent due to his diagnosed post-traumatic stress disorder.

Administrative Law Judge Susan A. Flynn found in her ruling that the corporate social media policy Kennedy had been asked to review was outdated at the time, as Chipotle had revised its policy to better comply with the National Labor Relations Act, which forbids employers from interfering with employees’ rights to engage in protected concerted activity. However, Chipotle could still be found liable for violations under the old policy, as that policy was the one referred to by Clark, the regional manager.

“I find that Clark’s implicit direction not to post tweets concerning wages or working conditions constitutes a violation of [the NLRA],” said Judge Flynn, reports Law360.

The judge also concluded that Cruz violated Kennedy’s rights when she fired him. Cruz’s fear that Kennedy would lash out “was neither justified nor true, and was fabricated after the fact,” Flynn said. Kennedy was fired because he had refused to stop collecting signatures for his petition, she said.

Kennedy has since found new employment working in a unionized position for American Airlines at Philadelphia International Airport and told the Philadelphia Inquirer he’s not interested in going back to work at Chipotle, although, he added, he’ll miss the free meals.

“If you want to tweet something about your personal experience at your job, do it,” he told the Inquirer, cautioning against libel and slander. “Tweet at your bosses and your bosses’ bosses.”

 

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Mercer: People Risks Can Undermine Mergers

Last year saw a veritable “merger tsunami,” including health-insurance giant Anthem’s proposed $47 billion acquisition of rival Cigna Corp., chemical giants Dow and DuPont becoming one and Dell’s announcement that it would acquire EMC. The trend is expected to continue through 2016, as low interest rates and volatile capital markets spur companies to grow via mergers and acquisitions.

A failure to address people issues can lead to a merger's unraveling.

Failing to address people issues may lead to a merger’s unraveling.

Mergers can and do go wrong, however, and one of the most volatile components are the people, especially the talented and experienced ones necessary for making it work in the first place. This risk is magnified when the necessary planning for employee retention, cultural integration, leadership assessment and compensation/benefits is given short shrift. However, in its first-ever People Risks in M&A Transactions report, Mercer finds that corporate leaders are being given less time than ever to properly address these risks.

The report finds that 41 percent of buyers report less time to complete due diligence compared to three years ago, while 33 percent say sellers are providing less information about assets for sale. Notably, more than one-third of sellers (34 percent) say more and more of their divestment resources are needed to address HR issues.

For buyers and sellers alike, a plan for clear and consistent communication is necessary for minimizing disruption, says Mercer. Beyond that, the companies doing the buying should use skills inventories and competency assessments to gauge the capabilities of leadership teams and key employees on factors such as their ability to govern, lead people and drive cultural change.

Buyers also need to “adopt an enterprise or global view” to effectively manage benefits, the report finds, and develop effective retention strategies for key stakeholder groups beyond the executive team during and after the transaction.

Sellers also need to identify critical employee groups and consider a retention program, says Mercer, and document a clear talent management/staffing plan to establish the infrastructure of the entity being sold and determine which employees will stay and which will join the new organization.

“The people risks highlighted in our report are clearly part of our conversations with the deal community here in the [United States],” says Mercer’s Chuck Moritt, North American multinational client leader. “The good news is that both buyers and sellers are fully realizing the urgent need to address them in a thorough and thoughtful manner.”

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Should Yelp Have Fired Employee?

There may be a few HR lessons to be learned from the recent media firestorm that’s engulfed Yelp since it fired former employee Talia Ben-Ora after she wrote an open letter to Yelp CEO Jeremy Stoppelman complaining about her low pay.

Ben-Ora, who worked in customer support at Yelp’s Eat24 food-delivery service, said in her letter that the pay she and her co-workers earned simply wasn’t enough to survive in the San Francisco Bay Area, one of the most expensive regions in the United States. “So here I am, 25-years old, balancing all sorts of debt and trying to pave a life for myself that doesn’t involve crying in the bathtub every week,” she wrote. “Every single one of my co-workers is struggling …. they’re taking side jobs, they’re living at home.”

Shortly after posting the letter on Medium.com, Ben-Ora was fired. She later wrote on Twitter that she was fired because she violated Yelp’s employee code of conduct.

For his part, Stoppelman has denied, via Twitter, that Ben-Ora was fired because of the letter and said he was not personally involved in her termination. He also acknowledged the high cost of living in San Francisco.

When an employee posts an angry diatribe against the company on social media, HR and the CEO need to “take a deep breath,” says employment attorney Erin Dougherty Foley of Seyfarth Shaw in Chicago.

“If the conduct was egregious or in some way violated the company’s code of conduct (or other policy), then the company would likely have a defensible reason for making the termination decision,” she says.

In Yelp’s case, there very well may have been other factors involved in the company’s decision to fire Ben-Ora, says Foley. “I get a sense that there’s a back story there.”

However, employers also need to be aware of the risks of firing an employee (particularly with respect to public opinion) in such a public context, even if their reasons for doing so are perfectly valid, says Foley. “Companies should not feel handcuffed by employees engaging in conduct on social media, they just need to ensure that they are considering the conduct both in the context of the risk that it poses to the company (i.e., is another employee being harassed or bullied as a result) or whether the employee is engaging in ‘protected concerted activity’ or just blowing off steam.”

The “concerted protected activity” part can be a bit tricky, as the National Labor Relations Board has ruled in a number of cases that employees were engaging in protected activity when they took to social media to complain about wages and working conditions. “We don’t yet have a lot of clear or consistent direction from the courts or the NLRB on what is, and isn’t, protected activity,” she says.

One of the most important lessons here is that HR needs to ensure that “a robust open-door policy is in place for employees to raise these types of concerns without going to social media,” says Foley. “A real value-added for HR is being the ear to the ground, hearing and addressing these types of concerns before they go to the Internet,” she says. “A culture that fosters this sort of openness will serve the company well in the long run.”

 

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