Rent-A-Center’s ‘Hollow Victory’ for Employers

The U.S. Supreme Court’s narrow 5-4 decision in favor of Rent-A-Center this week is certainly, on the face of it, a victory for employers. Once again, the court upheld the validity of pre-dispute arbitration agreements, and the validity of letting an arbitrator — not a court of law — decide whether such an agreement is enforceable in employee-dispute cases.

But this legal alert from Fisher & Phillips warns that the decision in Rent-A-Center, West Inc. vs. Jackson may, in fact, add fuel to the fire under the Artibtration Fairness Act of 2009 now pending in Congress, which would render any such pre-dispute agreement unenforceable. It also warns employers with arbitration agreements in place to get with their counsel and make sure they “stand muster under the new decision issued” Monday.

“By and large,” the alert reads, “many employers continue to find arbitration proceedings preferable to court proceedings, as they are usually cheaper, more efficient and lead to more employer victories and fewer large verdicts. However, because of these very reasons, there has been a growing resistance movement” to them.

“No doubt the advocates of that proposed legislation will point to [Monday’s] decision as further evidence of the need for employee protection. One day, employers could look back at the Rent-A-Center decision as a hollow victory, one that did nothing more than provide fodder for arbitration opponents in their continued quest to restrict employer rights.”

Rules for Diversity

Working to restore a farmhouse with her husband, the “farmer,” crystalized the meaning — and the impact — of diversity for Penelope Trunk, CEO of Brazen Careerist, a career consulting firm.

These are her seven rules for diversity, but you should click on the link to get the amusing stories that go along with them:

1. Accept that some people don’t care about what you care about.

2. Know when you have to get your way.

3. Don’t try to change others. See the world differently yourself.

4. Seek out opposing views, just to practice processing them.

5. Use innocuous obsessions to distract from genuine conflict.

6. There’s relief: A new, jarring way of thinking becomes tame over time.

7. Real diversity requires real patience.

Grumps Shall Inherit the Workplace

“If you want to be happy, be,” Leo Tolstoy once said. But, if you want to be more effective at work–to make fewer mistakes, better decisions and be a sharper communicator–then by all means, be miserable.

Joe Forgas, a professor at Australia’s University of New South Wales, recently told Australia Science magazine that, based on his research, a grumpy person can cope with more demanding situations than a happy one because of the way the brain “promotes information processing strategies.”

Forgas conducted a study of a group of volunteers and found that the ones asked to dwell on negative things in their lives and watch sad movies subsequently outperformed others in the group who were asked to focus on positive things and watch happier  movies.  “Whereas positive mood seems to promote creativity, flexibility, cooperation and reliance on mental shortcuts, negative moods trigger more attentive, careful thinking, paying greater attention to the external world.”

“A mildly negative mood may actually promote a more concrete, accommodative and ultimately more successful communication style,” said Forgas.

Well, there you have it: If you’re feeling a bit unproductive or downright useless, simply turn on coverage of the BP oil spill or think about our exploding national debt and then watch your productivity go up, up and up.  The scowl on your face and the furrow in your brow will inspire awe among your colleagues about what a productive, clear-thinking, precise communicator you surely are.  Or maybe they’ll just think you were rooting for France to win the World Cup.

HR Leaders Cool to RPO

Phil Fersht at Horses For Sources writes on the results of a poll he did in conjunction with HREOnline on the views of HR leaders and recruiting strategies.

And he doesn’t seem too enamored of the primary HR position — that recruitment-process outsourcing “does not fit with our corporate culture or ethos.” 

The use of RPO by HR is no different than marketing using an outside PR firm, he writes. “If HR leadership fails to seek the help it needs soon, it may find decisions being made in corporate meetings, where the SVP of HR isn’t even invited.”

His survey findings and analysis seem destined to raise some blood-pressure readings.

Vigilante Anti-Illegal Immigrationists?

Here’s a new twist in the ongoing fracas over immigration. Came across this piece in Thursday’s New York Times about residents of a small town in Nebraska who are so fit-to-be-tied over illegal immigrants in their midst that they forced a vote on the issue — fighting off challenges by some of their elected leaders all the way to the state Supreme Court.

Indeed, voters of Fremont, Neb., will be deciding this Monday (June 21) whether to ban businesses from hiring illegal immigrants and bar landlords from renting to them. Forget waiting for your governor to take the lead, eh? (Though it does appear Fremont’s proposal was written with help from an author of Arizona’s new anti-immigration law.)

Mind you, there are only about 25,000 residents in this 1850s-era railroad and farming town about 30 miles northwest of Omaha, and it’s nowhere near an international border. But those in favor of the bans say the number of Hispanic residents has climbed from 165 in 1990 to close to 2,000 now, and that many are living and working there illegally and are responsible for rising crime rates. They’re demanding that all Fremont businesses use the E-Verify system, something skeptics of the proposed law say most already do.

I’m wondering what the atmosphere at the polling places is going to be like on Monday. (I’ll try to keep you posted.) The story suggests many people in Fremont have stopped talking to one another because they’re not sure where everyone stands on this extremely heated and controversial — and, of course, very personal — issue.

More importantly, I’m wondering how far from this kind of development the rest of our American cities and towns might be.

Back to the Board

The backlog of cases before the National Labor Relations Board grew by as many as 600 following the ruling issued today by the U.S. Supreme Court, which nullified all decisions made by the board when it had just two members.

“All of those cases were issued without proper authority,” says Peter Conrad, a New York-based partner at Proskauer. “All of those cases will have to be decided all over again.”

But, no worries. All of the 500 to 600 cases “were considered to be largely noncontroversial. … I don’t think any of them would be characterized as being far reaching in that they made new law.”

That was because, when the board had only two members for 27 months, one was a Democrat and one was a Republican. Now, there are three Democrats and one Republican following President Obama’s recess appointments in March of former union attorney Craig Becker and labor lawyer Mark Pearce.

One bright note: The backlog may make it more difficult to get to all of the other cases that have been waiting for board review.

And since the new board is considered much less friendly to employers than the one under the Bush administration, management might consider that that’s “probably a good development,” Conrad says.

Supreme Court Rules on Texting at Work

The U.S. Supreme Court has just unanimously ruled that a California police chief was within his constitutional rights when he viewed sexually explicit text messages sent by an officer’s work pager to two different women.

According to the LA Times, Sgt. Jeff Quon sued the police department after learning that thousands of messages he separately sent to his wife and a girlfriend had been viewed by his police chief in Ontario, Calif. He previously won his case in the 9th Circuit Court of Appeals, but lost today because:

In this case, the high court said the police chief’s reading of the officer’s text messages was a search, but it was also reasonable.

Justice Anthony M. Kennedy agreed the police chief’s actions amounted to a search, but it was reasonable, he said, because it had “a legitimate work-related purpose.” He wanted to see whether officers were using their text pagers for police work or for personal matters. “Because it was not excessive in scope, the search was reasonable,” Kennedy said.

While it’s true that many, if not most, employers tell employees that they should have no expectation of privacy when using company-owned communication devices, an Associated Press report on the ruling reports that Kennedy also offered some advice to employees on the topic:

Kennedy said that it is true that many employers accept or tolerate personal communications on company time and equipment. But he suggested that employees who want to avoid the potential embarrassment of having those communications revealed might “want to purchase and pay for their own” cell phones and other devices.

Ultimately, one wonders if this ruling will prompt HR departments across the country to revise, with stronger language, their employees’ handbooks on the use of company-owned telecommunications devices and the accompanying lack of an expectation of privacy.

Or maybe they should just send out a text message to everyone with a company cell phone.

Employees Sometimes Do Know Best

Before you stop reading this, thinking it’s some department-store promotional, hear me out.

The other day, I was in a Kohl’s Department Store madly searching for the right print in the right size in the little time I had. Taking my quest to the customer-service desk, thinking I’d probably be directed to another store (if I was lucky), I was directed instead to a telephone on the wall across from the desk. I picked it up and was immediately connected to a very friendly Kohl’s.com representative who quickly checked her “kiosk” of wares, found it and, while we were chatting, shipped it to my home, no shipping charge attached.

“This is our new service,” she told me. “If you don’t find exactly what you’re looking for in any of our stores, we can now direct you to this phone and you get it sent, no charge.” Misson over, headache abated, faith in your fellow humans temporarily restored. How simple.

“I’m impressed!” I told her. “I haven’t heard of this particular type of service before!”

“We came up with it ourselves, employees here at Kohl’s,” she said, sounding immensely proud. Some stores have installed computers in their customer-service departments, “but this just felt more personal; it made common sense,” she said. “We don’t think anyone else out there is doing this but us.”

In my old reporter mode, I immediately tried to track it down, thinking there might be an innovation case study for us in it somewhere. But the best James Barnes, Kohl’s’ manager of public relations, could give me was that the company is “very focused on implementing concepts that improve the customer experience and provide excellent customer service.” So, oh well, I guess I wasn’t going to get names — no what, why, where and when either.

I did come across this release, though, about a new book by the CEO of HCL Technologies, Vineet Nayar, pushing his notion that companies of the future need to shift their mind-sets and start relying on the good ideas of their employees when it comes to customer service, or fail. His book, Employees First, talks about solving much harder, more strategic problems around customer satisfaction by giving up the age-old notion that C-suiters and line leaders are where your solutions lie.

“Nayar argues,” the release says, “that the best way for companies to meet their customers’ needs is to stop making customers their top priority. Instead, companies should shift their focus to empowering employees to solve customer problems — in part by making management accountable to the employees who are the real creators of value.”

In Nayar’s own words: “Perhaps the biggest surprise for readers of my book will be that Western-style companies can achieve even greater success by making their approach to business more democratic. Companies with traditional top-down, pyramid-like hierarchies with rigid reporting structures make it very difficult for critical competitive information, garnered on the front line, to flow uphill to the C-suite, where strategic business decisions have traditionally been made.”

Kohl’s might be onto something here. Its employees certainly seem to be.

Why We Hate HR: Five Years Later

It’s been almost five years since Bill Taylor and Fast Company published the incisive — yet divisive — essay titled above on the reasons why people tend to dislike the human resources function.

The author suggests here that, five years on, HR executives remain frustrated with their roles in organizations:

So here’s a proposal. As this provocative essay approaches its fifth anniversary, perhaps it’s time to change the debate. The real problem, I’d submit, isn’t that HR executives aren’t financially savvy enough, or too focused on delivering programs rather than enhancing value, or unable to conduct themselves as the equals of the traditional power players in the organization — all points the original essay makes. The real problem is that too many organizations aren’t as demanding, as rigorous, as creative about the human element in business as they are about finance, marketing, and R&D. If companies and their CEOs aren’t serious about the people side of their organizations, how can we expect HR people in those organizations to play as a serious a role as we (and they) want them to play?

Taylor cites Cirque du Soleil, Pixar and DaVita as examples of organizations with positive, forward-thinking HR processes and a real focus on people, and then poses a number of queries to HR executives who are not happy with the role HR plays in their organization:

Why would great people want to be part of your organization in the first place? Do you know a great person when you see one? Are you great at teaching people how your organizations works and wins? Does your organization work as distinctively as it competes?

It’s nice to see that, five years later, Taylor has changed his tune when it comes to HR.

And, with those last questions, it’s even nicer to see him offer some sound advice for HR leaders looking to improve not only their performance, but also the overall perception of the HR function.