Catching (and Spreading) the Rudeness Bug

It’s said that laughter is contagious, right? Well, apparently, the same is the case for rudeness.

ThinkstockPhotos-476962485According to a study out of the University of Florida, titled Catching Rudeness Is Like Catching a Cold: The Contagion Effects of Low-Intensity Negative Behaviors, “encountering rude behavior at work makes people more likely to perceive rudeness in later interactions. … That perception makes them more likely to be impolite in return, spreading rudeness like a virus.”

Trevor Foulk, a doctoral student in management at UF’s Warrington College of Business Administration and the lead author of the study, puts it this way: “When you experience rudeness, it makes rudeness more noticeable. You’ll see more rudeness even if it’s not there.

“Part of the problem is that we are generally tolerant of these behaviors, but they’re actually really harmful,” he continued. “Rudeness has an incredibly powerful negative effect on the workplace.”

Tracking 90 graduate students who practiced negotiation with classmates, the researchers found that those who rated their initial negotiation partner as rude were more likely to be rated as rude by a subsequent partner. In other words, they ended up passing along the first partner’s rudeness. The study found the effect continued even when a week elapsed between the first and second negotiations.

In a separate test, the researchers also found that people who witnessed rudeness were more likely to be rude to others. “When study participants watched a video of a rude workplace interaction, then answered a fictitious customer email that was neutral in tone, they were more likely to be hostile in their responses than those who viewed a polite interaction before responding,” a press release on the research explained.

So what do these findings (published in the Journal of Applied Psychology) mean for employers? Foulks points to the need to take incivility more seriously.

“You might go your whole career and not experience abuse or aggression in the workplace, but rudeness also has a negative effect on performance,” he pointed out. “It isn’t something you can just turn your back on. It matters.”

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The Feds’ War on Employee Misclassification

Seeking to clarify the issue of just what it is that distinguishes an independent contractor from an employee, the Department of Labor yesterday  issued its first Administrator’s Interpretation (AI) of the issue as it pertains to the Fair Labor Standards Act. The issue has only grown more heated in recent months with the rise of “gig economy” companies such as Uber and Lyft, along with long-running disputes between companies and workers such as FedEx Ground’s dispute with its drivers, who claim they were misclassified as independent contractors.

Written by the DOL’s Wage and Hour Division Administrator, David Weil, the 15-page memo states that the misclassification of employees as independent contractors “is among the most damaging to workers and our economy.” It emphasizes the WHD’s six-factor economic realities test that’s used to determine a worker’s status along with what a just-released briefing from law firm Seyfarth Shaw describes as “an extremely expansive reading of the FLSA’s ‘suffer or permit to work’ definition of ’employ.'”

“Combined,” the Seyfarth Shaw briefing says, “WHD’s efforts indicate a significant hostility towards the use of independent contractors.”

An agreement between an employer and a worker stating that the worker is an independent contractor “is not indicative of the economic realities of the working relationship and is not relevant to the analysis of the worker’s status,” Weil’s memo states. The true measure of whether a worker is an employee or an independent contractor, Weil writes, is the extent to which the worker is economically dependent on the employer. A worker who is really in business for him-or-herself is an independent contractor, he notes; a worker who is economically dependent on the company is an employee.

Weil’s AI serves as a reminder to employers to regularly question their independent-contractor classifications as a part of their global risk audits, writes Michael Droke, a partner in the labor and employment division of Dorsey and Whitney. They should also be keeping records on the process used to determine whether one is an independent contractor or employee, and ensure that those classified as independent contractors aren’t given rights or access that may call their status into question, he writes: “For example, contractors should not have internal email accounts, should not be given server access, and should not be invited to employee functions.”

Weil’s AI is yet one more piece of evidence that the federal government is aggressively seeking out employers that misclassify (either deliberately or by mistake) employees as independent contractors and that businesses must proceed very carefully in this area, according to the Seyfarth Shaw memo.

“The guidance now makes it likely that DOL investigations and enforcement actions and private litigation contesting the classification of such workers will intensify,” the Seyfarth Shaw attorneys write. “Businesses should, therefore, carefully evaluate the DOL’s guidance and its potential impact on their operations.”

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EEOC Revises Pregnancy Bias Guidance

In case you missed it, the U.S. Equal Employment Opportunity Commission recently issued an update of its Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document, which are available on the EEOC’s website.

The updates to the Guidance are limited to several pages about the U.S. Supreme Court’s recent decision in Young v. UPS, issued in March 2015:

The updated Guidance reflects the Supreme Court’s conclusion that women may be able to prove unlawful pregnancy discrimination if the employer accommodated some workers but refused to accommodate pregnant women. The Court explained that employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification.

The decision in Young does not affect most of the July 2014 EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues and therefore the following topics remain the same:

  • the PDA’s application to current, past, and potential pregnancy;
  • termination or refusal to hire someone because she is pregnant and other prohibited employment actions based on pregnancy;
  • application of the PDA to lactation and breastfeeding;
  • prohibition of forced leave policies;
  • the obligation to treat women and men the same with respect to parental leave policies; and
  • access to health insurance.

The Court’s opinion did not address the effect of the ADA Amendments Act of 2008 on workers with pregnancy-related impairments. Therefore that discussion in the Guidance also remains the same. The Guidance notes that, “Changes to the definition of the term ‘disability’ resulting from enactment of the ADA Amendments Act of 2008 make it much easier for pregnant workers with pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to a reasonable accommodation under the ADA.”

Alexis Knapp, a Houston-based shareholder at Littler, says the guidance gives numerous examples of the EEOC’s view that employers who provide flexibility, leave, modified duty, and more to non-pregnant employees will be expected to extend those same opportunities to pregnant employees, in order to avoid an unlawful difference in treatment “because of” pregnancy.

She says the EEOC also encourages employers to look beyond the requirements of the Pregnancy Discrimination Act and into the Americans with Disabilities Act and other laws that may provide additional protections to employees who suffer from pregnancy related conditions.

“I think the message to employers,” she says, “is that, while we still have defensive strategies to draw from when challenged, the starting point is that we need to be having the conversation with the employee and engaging her in an interactive process about what her limitations are, how long she anticipates those limitations will last, and whether we can find a way to enable her to work safely in light of those limitations.  The answer may not always be ‘yes,’ but the conversation has to happen and must be in good faith. ”

But, she adds, there are additional things that HR needs to consider as well as a result of the new guidance.

“First, although this starts to sound repetitive after a while, we must be training our managers and supervisors about these obligations,” she says. “These conversations about pregnancy and potential accommodations begin (and often stay) at the line supervisor level—between an employee and to whom she reports.  We have to be wary of the manager or supervisor who responds ‘We don’t do that here’ or ‘This job doesn’t allow that.’  It is true that there will be times when a reasonable accommodation will not be available, or that it poses an undue hardship, but that is not a decision to be made in a vacuum without the benefit of someone who understands the organization’s obligations under the PDA and ADA and other applicable laws. ”

At an even more basic level, she adds, managers and supervisors need to know that the most casual conversation with an employee can give rise to these obligations, without the employee needing to use any magic words or, without them even knowing those protections exist.

“We also need to be revisiting our policies, she says, “and not just policies on light duty — as we learned from Young and the EEOC’s Guidance — but our attendance, accommodation, FMLA, leave, paid time off and other related policies that might contain unintentional — but nevertheless — impermissible differences in how we treat employees.

“In fact, it is not just about pregnant female employees, but it also includes policies that contain unlawful distinctions between men and women in the provision of parental leave, or caregiver policies that are narrowly defined to only apply to women,” she says.  “The EEOC has made it clear that these too will be a focus of their enforcement from here forward. “

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Saying Goodbye to Same-Sex Benefits?

ThinkstockPhotos-533697873In the wake of the United States Supreme Court’s recent Obergefell v. Hodges decision—which guaranteed same-sex couples throughout the U.S. the right to marry—HRE’s Maura Ciccarelli pondered what this landmark decision would mean for employers and HR leaders.

The International Foundation of Employee Benefit Plans was apparently wondering the same when it recently surveyed 258 companies in an effort to gauge how the ruling would influence employers’ approach to offering benefits.

Overall, 53 percent of responding employers said they believe the ruling will have an effect on their organizations. (In total, 57 percent of the companies surveyed reported offering benefits to same-sex domestic partners at the time of the Obergefell v. Hodges decision.)

Take a closer look, however, and the impact figures to be negligible.

For example, just 4 percent of those surveyed by the IFEBP said they anticipate the Supreme Court’s same-sex ruling would be “extremely” impactful, while 6 percent said the ruling would be “very” impactful, and 43 percent indicated the ruling would have “somewhat” of an effect.

Among the companies currently providing same-sex benefits, more than 70 percent said they are likely to continue offering them. Of the remaining respondents who said their organizations are unlikely to continue making benefits available to same-sex domestic partners, nearly all (93 percent) said they only provided such benefits in the past because same-sex couples couldn’t legally marry; which is no longer the case. Forty-four percent of these companies pointed to administrative complexities—documentation, tax and payroll issues, for instance—as the main reason why they plan to discontinue same-sex domestic partner benefits, with 19 percent citing cost as the biggest factor in their decision.

Likewise, the Brookfield, Wisc.-based provider of employee benefits education, research and information asked those who said they plan to continue providing same-sex domestic partner benefits why they have chosen to do so. Fifty-three percent of these employers said they “provide benefits to opposite-sex domestic partners, and want to be equitable,” and 53 percent reported a desire to attract and retain quality employees as the No. 1 driver. Forty-two percent indicated their organizations “recognize all kinds of families,” with another 36 percent saying they feel offering benefits to employees in same-sex domestic partnerships is simply “the right thing to do.”

It seems the majority of employers are in agreement with this group, at least according to this IFEBP poll. Julie Stich, the organization’s director of research, noted as much in a recent statement.

“Despite the Supreme Court’s decision to make same-sex marriage legal, many employers are deciding to continue offering benefits to unmarried domestic partners,” said Stich.

“They see providing benefits—to both same- and opposite-sex domestic partners—as a way to ensure employees and their loved ones are happy and healthy.”

 

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HR, Training and the ‘Gig’ Economy

New survey data finds few organizations are investing in their employees’ training and development these days, and I’m beginning to think the “gig economy” may have something to do with it.

Saba, a global provider of talent management solutions, just released additional findings from its spring Global Leadership Survey, in which it found that a mere 13 percent of companies worldwide invest in talent-management programs to further employees’ growth and career path.

For those companies that are providing training, only 35 percent are offering career development opportunities online. And, according Saba, the majority of employees (57 percent) are simply getting their training from “on the job” experience.

“Understandably, companies are focused on bottom line growth and results,” said Emily He, Chief Marketing Officer at Saba. “Unfortunately, many organizations don’t consider the career development of their employees a part of that growth equation — but they should. ”

However, a piece in today’s New York Times titled “Rising Economic Insecurity Tied to Decades-Long Trend in Employment Practices,” shows how the rise of the “gig economy”  (think Uber or Lyft, for examples) is changing all sorts of expectations — including compensation and training — on both the employers’ and workers’ sides.

According to the NYT piece, tens of millions of Americans are now involved in some form of freelancing, contracting, temping or outsourcing work:

The number for the category of jobs mostly performed by part-time freelancers or part-time independent contractors, according to Economic Modeling Specialists Intl., a labor market analytics firm, grew to 32 million from just over 20 million between 2001 and 2014, rising to almost 18 percent of all jobs. Surveys, including one by the advisory firm Staffing Industry Analysts of nearly 200 large companies, point to similar changes.

So perhaps it’s no wonder that companies are devoting less time to training programs when they only expect to use such workers for short-term projects:

Since the early 1990s, as technology has made it far easier for companies to outsource work, that trend has evolved beyond what anyone imagined: Companies began to see themselves as thin, Uber-like slivers standing between customers on one side and their work forces on the other.

The piece also includes David Weil’s — who runs the Wage and Hour Division of the United States Labor Department — description from his recent book, The Fissured Workplace, of how investors and management gurus began insisting that companies pare down and focus on what came to be known as their “core competencies,” such as developing new goods and services and marketing them.

Far-flung business units were sold off. Many other activities — beginning with human resources and then spreading to customer service and information technology — could be outsourced. The corporate headquarters would coordinate among the outsourced workers and monitor their performance.

“In the past, firms overstaffed and offered workers stable hours,” said Susan N. Houseman, a labor economist at the W. E. Upjohn Institute for Employment Research. “All of these new staffing models mean shifting risk onto workers, making work less secure.”

The NYT piece notes that, while only representing a limited corner of the nation’s approximately $17.5 trillion economy, other types of workers are watching with trepidation how organizations are moving toward the “gig economy” model.

Indeed:

…[E]ven many full-time employees share an underlying anxiety that is a result, according to the sociologist Arne L. Kalleberg, author of Good Jobs, Bad Jobs, of the severing of the “psychological contract between employers and employees in which stability and security were exchanged for loyalty and hard work.”

While outsourcing and “gigging” jobs may cut organizations’ short-term costs in some areas (such as training and development efforts)  Saba’s He nonetheless emphasizes the need for companies to invest in training their workforce if they expect to succeed in the long run:

“Not only is talent management and training an integral part of workforce development, it’s proven to be a driving factor in the long-term growth and success of an organization.”

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A Case for Sleeping on the Job

Workplace nap rooms continue to be extremely rare. Indeed, according to the Society for Human Resource Management’s just released 2015 Employee Benefits study, about 2 percent of employers report having nap rooms. (And that seems high to me.) But that doesn’t necessarily mean the idea doesn’t have merit, right?

ThinkstockPhotos-483838351Admittedly, nap rooms are never going to gain significant traction in the workplace. Probably not in my lifetime, anyway. Most companies simply aren’t going to buy into the concept. But recent research coming out of the University of Michigan and posted on the online version of the journal Personality and Individual Differences—titled “Napping to Modulate Frustration and Impulsivity: A Pilot Study”could, at the very least, open the eyes of a handful of HR professionals.

Researchers at U-M recently found that napping can be a “cost-effective and easy strategy” that can boost employee productivity and workplace safety.

To arrive at its findings, the study’s authorsJennifer Goldschmied (lead author), Philip Cheng, Kathryn Kemp, Lauren Caccamo, Julia Roberts and Patricia Deldinrecruited 40 individuals, ages 18 to 50, to take part in the research. In a laboratory, the participantswho maintained a consistent sleep schedule for three days leading up to the testcompleted tasks on computers and answered questions about sleepiness, mood and impulsivity.

All were randomly assigned to a 60-minute nap opportunity or no-nap period that involved watching a nature video. Research assistants monitored the participants, who later completed the questionnaires and tasks again.

The researchers found …

“Those who napped spent more time trying to solve a task than the non-nappers who were less willing to endure frustration in order to complete it. In addition, nappers reported feeling less impulsive.

Combined with previous research demonstrating the negative effects of sleep deprivation, results from this latest study indicate that staying awake for an extended period of time hinders people from controlling negative emotional responses … .”

Commenting on the findings, Goldschmied, a doctoral student in the Department of Psychology, said …

“Our results suggest that napping may be a beneficial intervention for individuals who may be required to remain awake for long periods of time by enhancing the ability to persevere through difficult or frustrating tasks.”

None of this, of course, comes as a huge surprise. I’m sure we all feel a whole lot more functional after a nice nap. Right? But despite this fact, the U-M study and other research that has arrived at similar conclusionsI’ll stick with my earlier prediction that nap rooms and nap times, as a practice, aren’t going to see the light of day anytime soon.

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KPMG Acquires Towers Watson’s HRSD Practice

On the heels of its recently announced merger with Willis, Towers Watson said today it has sold its HR service delivery business to KPMG. Towers Watson’s HRSD helps clients integrate their HR-related processes with technology and provides consulting services in those areas, and has operations and clients not only in the United States but China, the U.K., Canada, Hong Kong, Singapore and the Philippines. Terms of the deal were not disclosed.

The acquisition marks KPMG’s sixth transaction in the HR space within the past four years. The other five transactions include KPMG’s acquisition of Equa Terra, Optimum Solutions, The Hackett Group’s Oracle Enterprise Resource Planning Practice, Zanett Consulting Solutions and the Workday practice of Axia Consulting.

Towers Watson’s HRSD practice has been heavily involved in Workday implementations for its clients, according to a statement announcing the acquisition from KPMG. As part of the acquisition, KPMG will continue to support Towers Watson’s HR Service Delivery and Technology Survey and its associated forum, the company said.

Towers Watson will be shifting its focus to growing its proprietary HR software business, said Max Caldwell, TW’s managing director of its data, surveys and technology business.

Mark Spears, KPMG’s global head of people and change and leader of its global HR center of excellence, said in a statement that the acquisition “significantly increases our capacity and ability to serve our global clients in all geographies.”

“Our capabilities and experience fit very well into KPMG’s strategy and organization,” said Mike DiClaudio, global leader of TW’s HRSD practice. “We are excited to continue helping HR leaders improve the quality and efficiency of the services they provide to their organization.”

 

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Explaining the Unpaid Internship Enigma

judgeIf an intern is for all intents and purposes a regular employee, then should he or she still be considered an intern?

The U.S. Court of Appeals for the Second Circuit recently attempted to answer this existential question, or at least help clear up the confusion over whether interns should be treated as employees—and paid as such.

On July 2, the aforementioned appeals court—which covers New York, Connecticut and Vermont—ruled in the case of Glatt v. Fox Searchlight Pictures Inc., in which plaintiffs Eric Glatt and Alexander Footman claimed that Fox Searchlight and Fox Entertainment Group violated the Fair Labor Standards Act and New York Labor Law by failing to pay them as employees during their internships, as required by FLSA and NYLL minimum wage and overtime provisions.

In June 2013, Glatt and Footman—who interned on the set of the 2010 Fox Searchlight film Black Swan—were granted partial summary judgment by the U.S. District Court for the Southern District of New York, which found that Glatt and Footman were indeed employees under the Fair Labor Standards Act and New York Labor Law.

In reaching its decision, the court relied on a version of the Labor Department’s six-factor test to conclude the interns had been improperly classified as unpaid interns as opposed to employees. At the time, the DOL filed an amicus brief imploring the appeals court to adhere to the department’s test requirement that each of these factors—the internship is similar to training that would be received in an educational environment and the intern does not displace regular employees, for instance—is met before considering an internship unpaid.

The Second Circuit Appeals Court, however, recently opted to “decline [the] DOL’s invitation,” according to court documents, in which the appeals court described the test as “too rigid for our precedent to withstand.”

Rather, the court agreed with the defendants’ assertion that “the proper question is whether the intern or the employer is the primary beneficiary of the relationship.” To conduct the “primary beneficiary” test, the court focused on two issues—what the intern receives in exchange for his or her work and “the economic reality as it exists between the intern and the employer.”

In sending the case back to district court for further proceedings, the appeals court decision “delineates when and under what circumstances an intern must be treated—and more importantly, paid—like a regular employee,” says Mark Goldstein, a New York-based attorney and member of Reed Smith’s labor and employment group.

By making this distinction, the Second Circuit addressed an issue that “had been a thorn in employers’ sides for the past several years,” says Goldstein.

The test used by the Second Circuit Appeals Court differs from the DOL’s “all-or-nothing” approach, which essentially required that an intern be treated as an employee “every time the employer derived a benefit from the intern’s work,” Goldstein told HRE.

Under this new standard, an intern is not categorized as an employee “simply because he or she performs work for the company, or because the company derives a benefit from the intern’s work, as the DOL had attempted to argue,” he says.

Moreover, the Second Circuit “appears to have made it much more difficult for the plaintiff’s bar to obtain class and collective action certification in lawsuits brought by former interns,” in ruling that the question of an intern’s employment status is a “highly individualized inquiry,” says Goldstein.

“This alone may spell the end of the recent barrage of unpaid intern lawsuits.”

Even in light of the court’s employer-friendly decision, though, now would be a good time to assess internship programs “to ensure that such programs satisfy all applicable judicial and regulatory guidance,” says Goldstein.

“Unpaid internship programs still pose risks—including not only potential liability for wage and hour violations, but also potential tax- and benefits-related penalties—that must be weighed before an internship program is implemented.”

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Clawback Provisions Getting Sharper

That’s the latest headline to emerge from Mercer’s most recent Financial Services Executive Compensation Snapshot Survey, which shows that 78 percent of companies are making changes to their executive pay programs as a result of difficult market conditions.

According to Mercer, the most popular changes planned are the strengthening of clawback conditions (47 percent), strengthening the link between performance management and compensation (44 percent) and increasing the use of non-financial measures (31 percent) in reviewing performance.

The survey reviewed the pay practices of 55 global financial services companies — banks, insurers and other financial services companies — based in 15 major countries in Europe, North America and Asia.

The report is intended to provide an update on key global changes and practices in financial services compensation programs, according to Mercer, and is designed to capture the latest changes or anticipated changes to compensation programs among major financial services companies.

According to Vicki Elliott, a senior partner at Mercer:

“Financial services HR teams and remuneration committees are being challenged to find ways to structure pay to engage, motivate and retain high-performing staff while being mindful of regulatory requirements and public pressure.

“Since 2008,” she says, “we’ve seen a steady change in approach as companies actively tie rewards more closely to risk and multi-year performance.”

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Nestle Launches Global Maternity-Protection Policy

Besides its popular, branded products, employees at Nestle have something else to brag about – the company’s new maternity leave policy.

The global food and beverage company recently announced that it is more than doubling paid and unpaid maternity leave for employees worldwide. For employees in its seven US operating companies, the benefit will kick in on Jan 1. The policy also applies to male employees and adoptive parents who serve as primary caregivers of their newborns following birth or adoption.

The policy is based on revisions from the International Labour Organization’s Maternity Protection Convention, which offered minimum standards that will be implemented at all Nestle workplaces around the world by 2018.

Take a look at these benefits. It puts many maternity policies in the United States to shame:

  • New moms can take up to 26 weeks off of work, which includes 14 weeks paid leave and 12 weeks unpaid leave. Previously, the company offered six weeks of paid leave and another six weeks of unpaid leave.
  • New moms can also extend their maternity leave up to six months
  • New fathers can take one week of paid paternity leave and one additional week of unpaid leave.

The policy also offers flexible working arrangements and guaranteed access to breastfeeding rooms during work hours in head offices and sites that employ more than 50 people. Currently, Nestle supports more than 190 breastfeeding rooms across working facilities worldwide.

The company’s employees appear to be very happy about the new policy changes based on the vast number of email praises sent to HR. I’ll bet if HR conducted an employment engagement survey today, it would see numbers regarding job satisfaction, company loyalty and productivity soar. Not to mention retention and, as a possible side affect, customer loyalty.

According to the company’s press release, “The company believes that the first 1,000 days between the start of a pregnancy and a child’s second birthday offer a unique window of opportunity to shape healthier and more prosperous futures.”

The policy is a nice complement to the Family and Medical Leave Act, which Congress passed more than 20 years ago. The law requires companies with more than 50 employees to offer parents and adoptive parents up to 12 weeks of unpaid family leave after the birth of a child.

In Nestlé’s case, it made a conscious choice to add two more paid months to its exiting maternity leave. That additional time can mean the difference between fatigued, low-producing employees who constantly worry and call their daycare provider and those who are rested and ready to focus on their job responsibilities.

Kudos to Nestle, I say.

But being skeptical by nature, I asked the company if the new policy was due to changes in its workforce composition. Perhaps it plans on hiring more Millenials and is using the new policy as an effective recruitment and retention tool.

Here’s how HR responded:

“It wasn’t so much a reaction to the changes in our workforce as it was a desire to have our benefits to catch up to how families have evolved,” explains Judy Cascapera, Nestle USA’s chief people officer. “As a company committed to enhancing our employees’ lives and helping families improve their nutrition, health and wellness, Nestle expanded our policy to make sure we’re living up to that vision.”

However, she also believes that the new maternity policy can help retain workers and ultimately produce happier and more productive employees.

Meanwhile, it seems like some companies are taking baby steps regarding maternity leave policies. According to the ILO’s recent Maternity Protection study, 38 percent of the 185 countries surveyed provided at least 14 weeks of maternity leave back in 1994. By 2013, only 51 percent of those same countries did.

By implementing this new policy, Nestle gets it. It understands the value of such benefits and recognizes the contribution they make not only to the company’s overall success, but also to the health and wellbeing of its employees and communities it serves.

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