Category Archives: HR profession

Dangers of Social-Media Discipline

judge's gaveEmployers should be concerned by the National Labor Relations Board’s latest decision pertaining to social media and work. If not concerned, then taking very special note of, at the very least.

This ruling, as detailed thoroughly in this posting from Littler Publications, centers around employees’ off-duty social-media posts about work, and what employers can and can’t mandate about that.

In the ruling, as the posting puts it, the board came down hard on the employer — Triple Play (a.k.a., Triple D) Sports Bar and Grille in Watertown, Conn. — in that it “set a high bar for employers before they can terminate employees based on speech otherwise protected by Section 7 [of the National Labor Relations Act], determined that [a Facebook] ‘Like’ in that case was protected, reversed the employee’s firing and found a key provision in the employer’s social-media policy to be unlawfully overbroad.” I’d say that’s coming down hard.

The case has to do with several employees who were complaining in a Facebook discussion about a mistake they suspected the bar’s owners of making when calculating their state tax withholding. Some in the discussion were simply following the lines of the conversation. Here is Littler’s rendition of what transpired:

The owners organized a staff meeting with the payroll provider to discuss the issue. Before this meeting, Jamie LaFrance, a former employee who had recently left [her job] started a Facebook conversation by posting the following status update:

“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!”

Several comments followed in which a customer and a current employee sympathized.

LaFrance continued by accusing the owners of making a mistake in calculating tax withholdings, and she expressed her intention to report the mistake to the state’s “labor board.” At that point, a current employee, Vincent Spinella, selected the “Like” option under LaFrance’s initial status update.

As the Facebook exchange continued, LaFrance verbally attacked one of the owners:

“Hahahaha he’s such a shady little man. He prolly [sic] pocketed it all from all our paychecks.”

Another current employee, Jillian Sanzone, followed this statement by posting: “I owe too. Such an asshole.”  More comments followed, including a statement by another current employee that she planned to discuss the tax issue at a staff meeting.

After learning about the Facebook exchange from one of LaFrance’s Facebook friends, a current employee who happened to be the sister of one of the owners, the owners questioned Spinella about his “Like.”  They told Spinella that it was “apparent” he wanted to work somewhere else because he had “liked the disparaging and defamatory comments” and terminated his employment.

Spinella accused Triple D of illegal actions under the NLRA and the case came before the NLRB. Triple D argued that the disparaging comments and Spinella’s “Like” took the case outside the realm of the NLRA’s Section 7 protection as a concerted activity. The board, however, ruled otherwise because: Spinella did not specifically “like” any of LaFrance’s allegedly defamatory comments in and of themselves, the comments weren’t intended for public consumption on a private Facebook page and no one mentioned anything disparaging about the employer, per se, but related everything to an ongoing labor — i.e., tax withholding — dispute.

The NLRB also ruled this portion of Triple D’s social-media policy was too broad:

“[W]hen Internet blogging, chat room discussions … or other forms of communication extend to employees … engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.  … In the event state or federal law precludes this policy, then it is of no force or effect.”

So what should you be concerned about exactly? Littler attorneys Philip Gordon and Zoe Argento offer these six takeaways in their post:

  1. Because a “Like” standing alone can be protected, employers should consider consulting with counsel before disciplining employees based on their selection of the “Like” button.
  2. When analyzing whether a “Like” is protected speech, employers should refer to the specific post or comment to which the “Like” relates.
  3. When analyzing whether otherwise protected social-media posts have crossed the line and lost their protection, the NLRB will apply different standards to disparagement of the employer’s products and services and defamation of the employer or members of its workforce.
  4. The actual malice standard applicable to defamatory statements imposes a heavy burden on the employer to prove that the employee posted content knowing it was false or it was made with reckless disregard for the truth.
  5. Employers should consult with counsel before firing an employee for allegedly defamatory or disparaging speech when that speech takes place in the context of a group discussion in social media.
  6. The NLRB continues to closely scrutinize social-media policies. Employers should recognize that language which is general or establishes subjective standards, such as “inappropriate discussion,” will raise a red flag for the board unless accompanied by examples that make it clear to a reasonable employee that the general language is not intended to encompass protected speech.  Relatedly, employers should expect the board to closely scrutinize any disclaimer before relying on it to “save” policy language from invalidation.  Such disclaimers have not been very helpful overall in terms of avoiding NLRB problems.

For your additional reading pleasure, and pointers, here are numerous blog posts we’ve written about social media in the workplace and social-media policies employers are drafting, should be drafting and shouldn’t be drafting in their attempts to control its impact.

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You Can Keep the Corner Office

AA049404HR leaders are always on the lookout for the organization’s next generation of leaders. A new survey, however, finds the majority of workers aren’t particularly interested in ever taking the reins.

A recent poll of 3,625 workers age 18 and up, conducted by Harris on behalf of CareerBuilder, found just one-third (34 percent) of these employees aspire to leadership positions. Just 7 percent indicated an interest in shooting for senior- or C-level management.

Why are these workers indifferent toward reaching the top levels of the organization? Most (52 percent) said they are simply satisfied in their current positions. Another 34 percent of this group indicated they don’t want to sacrifice work/life balance at the expense of advancement, while 17 percent said they don’t have the necessary education.

The survey did find the desire for leadership roles to be greater among men than women, by an 11 percent margin (40 percent versus 29 percent). At 44 percent and 39 percent, respectively, African-Americans and LGBT workers were more likely to take aim at leadership positions than the national average. Thirty-two percent of workers with disabilities reported similar aspirations, as did 35 percent of Hispanics.

The poll also addressed the glass-ceiling issue, asking respondents to what extent they felt firms held female and minorities back in their career pursuits. Overall, 20 percent of those surveyed said they feel his or her organization has a glass ceiling preventing women and minorities from reaching higher job levels. Just 9 percent of non-diverse males said they think a glass ceiling is in place at their companies.

These figures spiked, however, among those with designs on management and senior management positions. For example, 33 percent of females in this category felt such barriers existed, while 34 percent of Hispanics, 50 percent of African-Americans and 59 percent of workers with disabilities said the same. Twenty-one percent of LGBT workers seeking leadership roles indicated as much, slightly less than the national average.

While it seems many employees are content to forego the executive career track, “it is important … to promote a culture of meritocracy in which all workers, regardless of gender, race or sexual orientation, are able to reach senior-level roles based on their skills and past contributions alone,” said Rosemary Haefner, vice president of human resources at CareerBuilder, in a statement. “The survey found that employees at companies that have initiatives to support aspiring female and minority leaders are far less likely to say a glass ceiling holds individuals back.”

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Exec Hiring Market Heating Up

Heading into 2015, almost two-thirds of employers are selectively or significantly increasing executive hiring levels, and a similar percentage of employed executives are now open to or actively pursuing new opportunities, according to a newly released survey focused solely on the executive market.

The results of the Greenwich, Conn.-based Claymore Group’s Labor Day 2014 Executive Talent Market survey were culled from the responses of 407 executives.

The executive respondents indicated that the industries they work in that are planning to hire the most in 2015 are:

* Consulting/Professional services,

* Healthcare/Pharm,

* Health insurance, and

* Wealth management.

Executives responding to the survey also indicated that the strongest functional areas demonstrating growth in executive hiring for 2015 are in are in sales, consulting/professional services, product management, risk management/compliance, and IT.

About two thirds of currently employed executives are now open to or actively exploring new opportunities. The best sources for executive employment were indicated to be Networking/Referrals and LinkedIn by both employed and unemployed executives. Facebook and job boards were viewed as the worst sources with internal, retained and contingency recruiters being viewed as good sources.

HR executives increasingly need to recognize the growth in executive hiring and demand by responding more rapidly in making offers as well as in making more competitive offers to attract the top executive talent as they are clearly more in demand, says Managing Director Steven Landberg.

“They also need to recognize a growing need to seek to retain their top executive talent as they will certainly be increasingly sought after by others in the talent market.”

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Could Gen Zers Help Solve STEM Skills Gap?

461252089 -- young scientistMore good news for employers when it comes to Gen Zers, the next generation — those now in high school and college — soon to enter the workforce en masse.

This just-released report from Chicago-based CareerBuilder says high-school seniors’ future career plans could very well clean up — or at least help bridge — that highly troublesome science, technology, engineering and math skills gap said to be barreling down the tracks.

According to the report, new research conducted by Harris Poll on behalf of CareerBuilder and its subsidiary, Moscow, Idaho-based Economic Modeling Specialists International, shows nearly three in four of 209 high-school seniors polled already know what career they want to pursue, and STEM-related fields top their choices. (The survey queried 2,188 hiring and human resource managers, ages 18 and over, as well.)

The poll also finds the majority (97 percent) of high-school seniors plan to go to college to obtain a two-year or four-year degree or other training that may ultimately help close the talent gap. The most popular majors? You got it, mostly STEM-related. Here they are:

  1. Engineering
  2. Business
  3. Psychology
  4. Biological and Biomedical Sciences
  5. Physical Sciences
  6. Arts, Visual and Performing
  7. Computer and Information Sciences
  8. Health Professions and Related Clinical Sciences
  9. English Language and Literature
  10. Math and Statistics

And here are the most popular choices for profession among the 73 percent of high-school seniors who know what they want to pursue (again, STEM-heavy):

  • Teacher
  • Engineer
  • Psychologist/Psychiatrist
  • Scientist – Biological/Physical/Social
  • Artist/Designer
  • Veterinarian
  • Machine Operator
  • Computer Programmer
  • Physician
  • Government Professional
  • Nurse

This seems to work quite nicely alongside a news analysis I posted on HREOnline on Tuesday, the same day the first truly definitive study on Gen Zers was released by Millennial Branding, based in New York, and Randstad, with U.S. headquarters in Atlanta.

That study, Gen Y and Gen Z Workplace Expectations, shows Gen Zers are more rooted in prudent and pragmatic notions about how work gets done and what is needed to succeed than their Gen Y predecessors (ages 21 to 32).

“Gen Zers … appear to be more realistic instead of optimistic, are likely to be more career-minded, and can quickly adapt to new technology to work more effectively,” Dan Schawbel, founder of Millennial Branding and author of Promote Yourself, told me for that piece.

They’ve also seen how much their parents and Gen Yers have struggled in the recession, he said, so “they come to the workplace well-prepared, less entitled and more equipped to succeed.”

Basically, Schawbel told me, they’re willing to work harder toward goals and have fewer illusions about what it takes to achieve them.

As the daughter, granddaughter and mother of scientists and engineers, I’ve lived through the hard work, stamina and — yes — realism involved in and needed for such pursuits.

So I have to say, I foresee only good things when you put these two reports together.

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What Happens When Executives Leave

executive exitThat’s what a pair of University of Kansas School of Business professors wanted to find out when they undertook a recent study on turnover at the highest levels of management.

James Guthrie and Jay Lee, professors of human resource management at the school, sought to see how companies perform following the exit of top executives, using data from 367 firms representing 134 industries. According to a UK statement, the researchers’ analyses “examined the relationship between top management team turnover and firm performance, taking into account a number of industry and firm characteristics, including a company’s own performance history.”

Guthrie and Lee found that, “as rates of top management turnover increase, firm performance tends to suffer.”

This may seem intuitive enough, but the researchers maintain that companies can sometimes be too “trigger-happy” in removing corporate leaders, and actually overestimate the positive effects of turnover at the top.

“There is this idea out there that top management teams get too complacent, too committed to the status quo, and therefore shaking things up will improve performance,” according to Guthrie. “And there is a certain extent to which that is true.”

But what firms don’t always count on losing in the process, he adds, is the departing executive’s tacit knowledge—social connections, industry relationships or organizational knowledge, for example.

The implication, says Guthrie, “is that turnover not only erodes performance by depleting organizational skill banks but, perhaps more dramatically, by altering the social structure and fabric of an organization.”

While acknowledging that change at the top is necessary when an executive isn’t performing well enough, “I think a lot of firms take this too far,” he continues, noting that companies can tend to overlook executives’ firm-specific experience and fall into a mindset that change is always a good thing.

Ultimately, Guthrie and Lee concluded that the effects of turnover at the highest levels of management are comparable to those found in studies of turnover at the lower levels of the organization—increased turnover equates to decreased productivity and insecurity in other parts of the firm.

“It’s basically a cautionary tale,” says Guthrie. “Don’t necessarily think that if you’re in a volatile industry, changing people at the top will improve things.”

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Hiring Slows Despite Economic Revival

The Wall Streets Journal recently published a story about how employers are still dragging their collective feet when it comes to hiring, even though the economy seems to have fully recovered from the recession.

According to the piece, employers are taking an average of  25 working days to fill vacant positions, based on information Dice-DHF Vacancy Duration Measure which, the paper reports, is an index created by University of Chicago economist Steven Davis.

And, according to Davis’ figures, larger companies (those with at least 5,000 employees) take even longer to fill vacant positions: 58.1 days.

The story goes on to lay out a few possible reasons why hiring is taking so long, among them:

On one hand, companies are feeling sunny enough to post jobs—openings reached 4.7 million in June, the highest number since 2001—but, fearful the economy could falter, they are finding it hard to commit to hires.

Another reason:

Thinner staffing in HR and recruiting departments may be another factor, since recruiters are taking on a larger workload as employers post jobs. “Depending on how many hiring managers [company recruiters are] dealing with, it’s impossible” to fill jobs quickly, says Mark Mehler, co-founder of staffing strategy consulting firm CareerXroads.

Meanwhile, when HRE Staff Writer Mark McGraw reported on the phenomenon back in March, Glassdoor reported the average time-to-fill a vacant position in 2013 was 23 days.

Typically, this latest WSJ story says, a longer time between employers advertising a job and having an offer accepted is a sign of a thriving economy, suggesting there are more openings than job seekers to fill them.

“But with nearly 10 million Americans currently unemployed, that doesn’t describe today’s labor market,” the story notes.

“Slow” would likely be a better way to describe it.

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Christmas Gifts for 1 Million: Jobs

There’s a movement afoot to put a million people to work by Christmas that does seem a bit outside your standard hiring 482134293 -- job seekingapproaches. First off, understand, this is not a company looking for employees. Nor is it a mere job fair. This is a relatively new organization known as Apploi, a jobs app and ecosystem that’s been traveling the country and hosting events aimed at helping job seekers find work.

It’s last week-long event in the Chicago area culminated this past Thursday, Aug. 28, in a final event at the city’s House of Blues. The event featured an information and training session, networking opportunities and meetings with hiring managers. That event capped off a week in which job seekers, using the app, were able to apply to jobs with a number of big companies in the region, including UNIQLO, Best Buy, Cinnabon, Piercing Pagoda and Forever 21.

Working under the banner and social hashtag #Million4Christmas, Apploi’s goal, according to its release is “to increase access to jobs for people across the United States and even beyond, while providing training and career advice to those looking for jobs in retail, service and support.”

Here is a video from an ABC News special in December of last year explaining how the app works. As its release states, it “transforms the initial point of capture for job seekers, allowing companies to see personality and soft skills up front, through video and audio questions; hire talent quickly, both through filters and screening tools and instant communication; [and] also provides greater access to people who previously couldn’t apply, due to lack of Internet, or who didn’t know about opportunities.”

Its public kiosks, it says, are available at companies, as well as job centers, community centers and colleges, workforce centers, and libraries in cities and towns throughout the country.

Exactly how this plays out and how the jobs are to be tallied and verified remains to be seen. As Apploi CEO Adam Lewis says, “helping 1 million job seekers find work by Christmas is, by no means, an easy task.”

On first impression, though, the effort seems to be one that can only help all involved, employers included.

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Lowe’s Nailed for $9.5M over HR Managers’ Suit

Lowe’s Home Centers Inc. agreed to pay $9.5 million to end human resources managers’ class action allegations that they were not actually managers and that Lowe’s misclassified them as exempt from overtime pay requirements, according to documents filed in Florida federal court, according to multiple sources.

Lead plaintiff Lizeth Lytle’s suit, initially lodged in August 2012, asserted that the company classified its human resources managers as exempt from the Fair Labor Standards Act’s overtime requirements, but that their duties were not as sophisticated as their title suggested and they should not be classified as exempt.

Although given the title of manager, Lowe’s human resources managers, who number as many as 1,745, lack discretion to make meaningful decisions and do not supervise employees, the plaintiffs alleged.

In their motion seeking preliminary approval of the settlement, the plaintiffs said they expected Lowe’s to argue they were properly classified because the HR managers interviewed potential hires, along with 20 other job roles.

“The jury would have been presented with a very complex case where some employees apparently worked contrary to standard procedures, and will claim to have spent substantial amount of their work hours involved with many routine and repetitive, typical nonexempt job duties, while spending unknown percentages of time engaged in the alleged primary job duties,” the motion said.

The settlement fund includes up to $3.2 million in legal fees, with class members dividing the remaining fund amount between them. The method for the proportional allocation has not yet been determined, according to the settlement.

A trial had been scheduled for June 2015, but the settlement now renders that date moot.

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Paving Co. to Pay for Steamrolling Whistleblowers

A Michigan paving company has been found in violation of the Surface Transportation Assistance Act by the U.S. Department of Labor’s Occupational Safety and Health Administration for wrongfully terminating a foreman and two truck drivers after they had raised safety concerns after being directed to violate U.S. Department of Transportation mandated hours of service for commercial truck drivers.

According to a release from OSHA, the Pontiac, Mich.-based asphalt paving company was ordered to reinstate the three employees to their former positions with all pay, benefits and rights. The company was ordered to pay a total of $953,916 in damages: $243,916 in back wages to the drivers, $110,000 in compensatory damages and $600,000 in punitive damages.

“It is illegal for an employer to retaliate against employees who report work-related safety concerns or violations of federal transportation regulations, which require drivers to have a minimum 10-hour rest period between shifts,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “OSHA is committed to protecting workers from retaliation for exercising basic worker rights.”

The Surface Transportation Assistance Act covers private-sector drivers and other employees of commercial motor carriers. Companies covered by the STAA may not discharge their employees or retaliate against them for refusing to operate a vehicle because doing so would either violate a federal commercial motor vehicle rule related to safety, health or security, or because the employee had a reasonable apprehension of serious injury to themselves or the public because of a vehicle’s safety or security condition.

Any of the parties in this case can file an appeal with the department’s Office of Administrative Law Judges.

OSHA enforces the whistleblower provisions of the STAA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime and securities laws.

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.

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Destroying the Barriers to Vet Hiring

Despite the impressive images earlier this week of Special Op forces landing on a mountain top in Iraq to scout out a possible rescue option for refugees stranded there (and, in turn, help prevent an even more nightmarish situation from occurring), the reality is the U.S. military has been in the process of drawing down personnel from the Middle 477606281East, with the last U.S. troops currently due to leave Afghanistan by the end of 2016. A natural outgrowth of this drawdown, of course, is the need for these individuals to find jobs in the private sector. You’d think that might not be an insurmountable challenge, considering many of these vets bring with them amazing skill sets that make them ideal candidates for a long list of positions, including many at the leadership level.

Yet while there certainly have been plenty of stories about the commitment forward-thinking organizations are making to the recruiting and hiring of vets — including some published in HRE and on its website — there still remains a significant number of stumbling blocks that stand in the way of making this happen. True, many companies are taking significant steps in that direction. Earlier this month, 100,000 Jobs Mission, an organization with the goal of bringing together companies committed to the hiring of U.S. military veterans and military spouses, reported that member firms have hired, since its founding in 2011, a total of 161,752 U.S. military veterans through the second quarter of 2014. (The 165 companies now involved in the group pledged to hire 200,000 veterans by 2020.) But there’s little question plenty of barriers remain for these returning vets, including many put in place by employers themselves.

So what factors are standing in the way of returning vets landing jobs? In an effort to answer that question, Christopher Stone, a University of Texas at San Antonio Ph.D. student, is in the process of leading a research study — announced yesterday in a press release issued by the UTSA — aimed at uncovering what might be at work here. Stone, who is about two years into his research and has, thus far, developed a model for understanding factors affecting the hiring decisions of vets, recently co-authored an article titled “Factors Affecting Hiring Decisions About Veterans” (requires purchase) that appeared in the July edition of Human Resource Management Review and proposes several hypotheses and potential solutions. (No surprise Stone — who also discussed the research earlier this month at the 2014 Academy of Management annual meeting in Philadelphia — selected this as a research project, considering he served in the Air Force for eight years, first in an aircraft-maintenance unit overseas and then as a military training instructor.)

As might be expected, two of the primary barriers identified by Stone and his colleagues include stereotyping and a lack of understanding as to how military skills transfer over to civilian roles. According to the UTSA press release, the researchers used a model based on the treatment of people with disabilities to suggest specific steps employers might want to consider as they reassess their veteran hiring strategies (or lack of them), including:

  • Using education programs to dispel stereotypes, publicize veterans’ job successes and change the organizational culture to emphasize the value of hiring veterans;
  • Employing decision makers who value hiring veterans, recognizing and rewarding those who hire veterans, expanding recruiting to find talented veterans and giving bonuses to employees who refer veterans to the company; and
  • Familiarizing decision makers with military jobs and the associated knowledge, skills and abilities that are similar to civilian positions.

I’m sure many of your organizations are already doing some, if not all, of the above. But, that said, considering the significant talent challenges companies are facing today and extraordinary skills many of these vets are bringing to the table, I would think the timing couldn’t be better for employers to take inventory of what they’re doing and ask themselves, “Are we doing enough to ensure we’re not standing in the way of our progress?”

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