The EEOC Enforcement Agenda

Earlier this week, the Equal Employment Opportunity Commission issued its updated enforcement guidance on national origin discrimination.

(The EEOC also issued two resource documents to accompany the guidance: a Q & A publication on the guidance document and a small business fact sheet designed to illustrate the guidance’s chief points in plain language, according to the organization.)

The new guidance defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural or linguistic characteristics of a particular national origin group.”

The documents also address Title VII’s prohibition on national origin discrimination as applied to a broad range of employment situations and highlight practices for employers to prevent discrimination, as well as discussing legal developments since 2002, when the EEOC issued the national origin discrimination compliance manual section that these new guidelines are intended to replace.

“EEOC is dedicated to advancing opportunity for all workers and ensuring freedom from discrimination based on ethnicity or country of origin,” says EEOC Chair Jenny R. Yang, in a statement.

“This guidance addresses important legal developments over the past 14 years on issues ranging from human trafficking to workplace harassment. The examples and promising practices included in the guidance will promote compliance with federal anti-discrimination laws and help employers and employees better understand their legal rights and responsibilities.”

This announcement comes just weeks after the EEOC unveiled its Strategic Enforcement Plan for fiscal years 2017 through 2021. One pillar of this plan is the agency’s expanding focus on protecting immigrant and migrant workers, such as those who are Muslim or Sikh or persons of Arab, Middle Eastern or South Asian descent, as well as those perceived to be members of these groups, as HRE’s Julie Cook-Ramirez noted earlier this month.

Of course, the EEOC’s new guidelines and its stated strategy for the next five years arrive almost exactly two months before the scheduled inauguration of President-Elect Donald Trump, who stands to significantly shake up the agency’s agenda.

In a recent blog post at www.law360.com, law professor Michael LeRoy explains how the incoming president could very well upend the EEOC’s enforcement agenda with regard to national origin (and other forms of) discrimination.

“Trump’s popularity derives in no small measure from people who are tired of ‘political correctedness,’ ” writes LeRoy, a professor in the School of Labor and Employment Relations and College of Law at the University of Illinois at Urbana-Champaign. “This concept is generally found in Equal Employment Opportunity Commission regulations that prohibit employers from creating a ‘hostile work environment.’ ”

That term applies to sexual harassment, but racial, religious and national origin harassment as well, adds LeRoy.

“A Trump EEOC could redline ‘hostile work environment,’ thereby signaling that no federal employment policy prohibits the type of degrading language that Trump has used against women, Mexican, Muslims and other groups.”

For that matter, President Trump will have the opportunity to appoint high-ranking personnel that could in turn impact staffing decisions throughout the EEOC, potentially shifting the agency’s enforcement priorities, as Seyfarth Shaw attorneys recently pointed out.

In addition to the possibility that President Trump could designate a new EEOC chair, the agency will see General Counsel David Lopez leave at the end of 2016.

“[Lopez’s] impending departure means that President Trump will have an early opportunity to appoint his successor,” Seyfarth attorneys wrote. “These leadership changes at the highest levels of the EEOC will undoubtedly impact the direction the agency takes in the future.”

A Trump administration could also signal budgetary constraints for the EEOC, which may alter the way the agency approaches enforcement of discrimination guidelines.

“Historically, the EEOC adapted by focusing its enforcement efforts on systemic litigation, meaning targeting high-impact cases that address policies or patterns or practices that have a broad impact on a region, industry or entire class of employees or job applicants,” Seyfarth attorneys note. “The theory was that large, high-profile cases, settlements and judgments would have a greater deterrent effect, and would therefore affect a larger number of workers and industries.”

Faced with the possibility of fewer resources and new personnel, however, the EEOC of the near future could be forced to find “new and creative ways to adapt its enforcement program (and its own political viability) to the new reality.”

 

Thanksgiving with Co-workers

In advance of the upcoming feast day known as Thanksgiving, CareerBuilder has released a survey detailing how employees will be spending the holiday.

“Employees appear to be growing closer to those at work, or find it more difficult to break away from the office for Thanksgiving,” according to the press release announcing the annual survey, which was conducted nationally online by Harris Poll from August 11 to September 7, 2016 and included more than 3,300 workers across industries and company sizes.

More than one in four workers (28 percent) say they celebrate Thanksgiving with co-workers either in or out of the office – a substantial increase over 20 percent in 2015 and 19 percent in 2014. (Houston, Dallas and Miami continue to lead other major cities in percentage of workers that spend the holiday with co-workers.)

And more than 1 in 5 employees (22 percent) have to work on Thanksgiving (on par with last year) according the survey.

Below are the demographic breakouts of the survey.

Workers Who Celebrate Thanksgiving with Co-workers By:
 
U.S. Markets with the Largest Economies:

  • Houston: 44 percent
  • Dallas: 36 percent
  • Miami: 35 percent
  • Atlanta: 32 percent
  • New York: 27 percent
  • Los Angeles: 26 percent
  • Washington DC: 22 percent
  • Chicago: 20 percent
  • Boston: 19 percent
  • Philadelphia: 18 percent

Region

  • South: 37 percent
  • West: 27 percent
  • Midwest: 23 percent
  • Northeast: 22 percent

Industry

  • Healthcare: 33 percent
  • Retail: 32 percent
  • Sales: 32 percent
  • Transportation: 30 percent
  • Manufacturing: 26 percent

Diverse Groups

  • Hispanic workers: 35 percent
  • LGBT workers: 35 percent
  • African American workers: 33 percent
  • Asian workers: 31 percent
  • Disabled workers: 27 percent

This compares to 29 percent of non-diverse workers (defined as white, straight, non-disabled male under 50) vs. 19 percent in 2015.

Age 

  • 18-24: 36 percent
  • 25-34: 35 percent
  • 35-44: 27 percent
  • 45-54: 25 percent
  • 55+: 20 percent

If, like many of my colleagues, your holiday weekend begins when today’s work day ends, then I wish you a happy and healthy holiday.

Trump Win Good for Biz Women??

Not one for post-election posting here, but this LinkedIn piece by Sallie Krawcheck caught my eye. As a woman watching and dv496065aweathering the campaign, and now the transition to a Trump presidency, I wanted to make sure as many women — and men — as possible saw it too.

Her premise that “Donald Trump as president of the United States could just be the best thing that has happened to professional women in a long time … huh? what?” is right in Krawcheck’s wheelhouse. She’s the CEO of Ellevest, a digital investment platform for women; chair of Ellevate Network, a global professional women’s network; and author of Own It: The Power of Women at Work, to be released in January. As she puts it,

“We’re awake now. That’s because it’s all out in the open: the Billy Bush conversation, the recent New York Times OpEd on “bro talk on Wall Street,” even the light sentence for Brock Turner.  And while as a mother and an aunt, I hate it, I hate it, I hate it that we haven’t made more progress for younger women, this does represent an odd form of forward motion: We can’t really deal with an issue until we fully understand the issue.”

It’s a compelling piece and worth the read, whatever your gender or persuasion, political or otherwise. This new Trump era, ushered in by stepped-up conversations about the treatment of women, comes with “some proof that we can’t rely on others to fight this battle for us, and so we must redouble our efforts,” Krawcheck says. “… I’m hearing from more and more women that we must ‘put on our big-girl pants’ and do this ourselves..”

And it’s not like women don’t have the resources, she adds. “[W]e control $5 trillion of investable assets, we direct 80 percent of consumer spending, we’re more than half of the workforce. We’ve got a lot of power.”

Krawcheck’s list of what to do to claim and use that power is impressively detailed, and long. Just some of her many suggestions — some we’ve heard and written about, some we haven’t — include mentoring and sponsoring other women, amplifying what other women say in meetings, pointing out to others when they interrupt other women or ignore them in meetings, pointing out when the words they use to compliment men (“aggressive” or “go-getter”) are used to put down women and refusing to work at the company that doesn’t “get it” on making the work environment one in which you can be successful.

She also bangs the political drum some, post-election, suggesting women start donating to female candidates whose views line up with theirs, and start running for office and encourage other women to run for office.

And the financial-independence drum:

“[D]oing all that we can to be in financial control feels more important today than it did [before the election]. It’s important that we break the old gender norms of ‘the man manages the money; I manage the household.’ That leaves us retiring with two-thirds the money of men … but living five-plus years longer than they do. …

“[P]lease get yourself a financial plan and invest.”

All politics and election furor aside, Krawcheck gave me some serious things to think about. If any of this gets you thinking about new approaches to help the women in your organization claim their power and succeed, then all the better.

‘Persuader’ Ruling Helps Employers

Barack Obama hasn’t yet turned the Oval Office over to Donald Trump, but already one of his administration’s signature pro-labor rules has been scrapped. Not by the new president, but by a federal court.

Gavel banging
Gavel banging

U.S. District Judge Sam Cummings  in Lubbock, Texas, on Nov. 16 made permanent an earlier temporary injunction halting the Department of  Labor’s controversial “persuader rule.” That rule, announced in April, expanded an existing requirement for employers  to disclose in government filings when they hire legal counsel to combat unionization drives. Under the new rule, disclosure was necessary even if those lawyers only provided advice on how companies should persuade workers to oppose representation. It was one of several pro-labor rules or standards set recently by Obama-administration agencies, including the DOL, EEOC and NLRB.

“It’s a good result,” says Jeff Londa, a Houston-based labor and employment attorney with Ogletree Deakins who led the legal effort to set aside the rule.  As a result, “We’re back where we were.”

Business groups that joined several states in seeking the order included the National Federation of Independent Business, whose members are generally small employers.

But larger companies also will benefit from Wednesday’s ruling, Londa says. Though more likely than small firms to  have their own attorneys on staff,  larger employers still “typically go to outside counsel” for training and advice on company policies  “when there’s a lot on the line” in a major union organizing campaign, Londa says.

The “persuader”rule had  stirred widespread objections not only from employers, but also from lawyers, who said it breached the attorney- client privilege.

The Labor Department had filed an appeal with the Fifth Circuit after Cummings issued a preliminary injunction on June 27. That appeal is now mooted b this week’s permanent injunction, Londa says. That means “it would clearly be on the shoulders of a new administration” to appeal again  — unlikely, given Trump’s position on the Obama administration’s labor regulations. And given the GOP’s strong showing in Senate and House races on Election Day, Congress is not likely to intervene to revive the “persuader” rule, he notes.

“The inclination of the new Congress would probably be against the new rule,” Londa says. “I’m not sure they would get involved.”

 

 

 

Don’t Forget the Personal Touch

The 2016 Recruiting Trends Conference and the inaugural Talent Acquisition Technology Conference, held concurrently this Tuesday and Wednesday at the Hilton Austin in Texas, featured an expo hall with more than 50 vendors, many of them displaying the latest tech tools for finding and recruiting the best people. However, as speaker Rodney Smoczyk told the attendees at the Talent Tech session “How McLane Co. Has Navigated Over a Century of Recruitment Challenges with Technology,” technology can’t make up for the importance of actual conversations between recruiters and job seekers.

“When I started out in recruiting, I got a newspaper and a phone book to find my candidates. We had to talk to people. Now, I have to get through 250 applicants just to find the 10 I want to talk to,” said Smoczyk, director of recruitment at Temple, Texas-based McLane Co., one of the largest wholesale food distribution companies in the United States.

“I consider technology to be a tool, not the answer,” he said. “We actually have to talk to people as recruiters. At some point, we lost that human factor. We’re just people recruiting people, and if we’re leaving it all to technology, then we can probably answer our own question when we ask why turnover is so high.”

Job candidates for positions at McLane Co. can speak to a live recruiter if they choose, he said.

Another important point is to “keep [the application process] simple,” he said. McLane Co. has approximately 24,000 employees, many of them truck drivers. Asking truck-driver candidates to fill out lengthy applications simply won’t work when most are spending 14 hours per day on the road. “If you ask truck drivers to spend a lot of time applying for a job, then they’re not going to apply, period,” said Smoczyk.

This is a critical factor in the midst of a driver shortage that has left trucking firms competing fiercely with each other over talent, he said. “Finding truck drivers is one of my biggest challenges.”

Smoczyk urged attendees to try applying for jobs at their own companies to experience for themselves what candidates often go through. “Feel how frustrating it is to have to fill out the same information over and over again if you want to apply to more than one position,” he said. “If you haven’t [done this], then you’re doing yourself a real disservice.”

At McLane, the company has tried to make applying for a job as easy as possible, said Smoczyk. Candidates don’t have to enter information more than once even if they’re applying for multiple positions. The company made its jobs site mobile-friendly after determining that 72 percent of truck-driver candidates apply via their smartphone. Smoczyk’s recruitment-marketing manager “drives our tech staff crazy insisting that no piece of information on our website be more than two clicks away,” he said.

Never forget the importance of using data, especially when determining where it makes sense to advertise job openings, said Smoczyk. “It’s up to you to help hiring managers determine where it makes sense to advertise and where it doesn’t, and if you don’t have the data then you’re just guessing.”

Thriving in a Data-Driven World

It’s impossible to have a conversation about recruiting these days without talking about the role of data.

Magnifying glass and documents with analytics data lying on tablSo, I suppose it’s no surprise then to hear John Sullivan, author and professor at San Francisco State University, focus his opening keynote presentation at Recruiting Trends 2016, at the Hilton in Austin, Texas, on the role of data in the hiring decision-making process. (Recruiting Trends, which was acquired by LRP Conferences last November, is being held this week in conjunction with the Talent Acquisition Tech Conference.)

During his keynote titled “Forget the Hype: Data-Based Recruiting Reveals What Actually Works,” Sullivan told attendees that employers need to be much more data-driven.

If you ask CEOs what the biggest challenge is that they’re facing, human capital turns out to be No. 1, Sullivan said. “What’s not so good is that we’ve been a challenge for four straight years,” he continued. “And if you’ve been a challenge for four straight years, it means something needs to change.”

These same CEOs also said they believe recruiting the right talent has a huge impact on business success, Sullivan added.

So, if the impact is that significant, he said, that begs the question, “How come [recruiters] have no money?”

“I would argue it’s because we don’t make a very good business case,” Sullivan said. “We say we hired 20 people, but we don’t say those people brought in $20 million.”

In a fast-changing world, he explained, data tells you what works and what doesn’t work. But you need to be looking at the right data, he added. Google at one time looked at a candidate’s GPA, but the research found that grades made no difference in the quality of talent it hired—so it stopped paying attention to that metric.

“Stop having opinions about what’s the best source for hiring people,” he said. “Sure, you can have opinions, but if you want to influence hiring managers, you’re going to want to have facts that back your recommendations up.”

Sullivan also pointed out that CEOs care about quality of hire, and you should, too.

Most employers pay close attention to metrics such as the cost of hire, he said, but they should be focusing their attention instead on measuring the impact of their hiring decisions.

When you hire Cleveland Cavaliers basketball star Lebron James, what you should be measuring is the impact he’s going to be having on your organization over the next 10 years, he said.

In other words, employers need to be thinking about the big picture.

Sullivan also pointed out that most companies don’t measure the failure rates of the people they hire, but should. He used the example of birth control, where there’s a 9-percent failure rate. If birth control doesn’t work, he joked, you might end up with 20 years of misery. Well, the same could be said of hiring. If you get it wrong, that bad hire could be in your organization forever.

Room to Improve Pay Equity

A new survey from Willis Towers Watson  finds that employers and employees aren’t on the same page when it comes to discussing fair pay.

More than half of U.S. employees believe they’re paid fairly when compared to workers who have similar jobs either at their own or other companies, according to the survey. But at the same time, barely half of U.S. employers have a formal process in place to ensure pay fairness, indicating significant room for improvement.

“Pay equity is rapidly becoming a high priority for employers, especially with base pay continuing to be the most frequently cited reason employees choose to join or leave an organization,” said WorldatWork member Laura Sejen, managing director of talent and rewards at Willis Towers Watson.

“For employers,” she adds, “there is much at stake and also room for improvement. Employees’ perception that they are paid fairly is closely linked to their engagement which, in turn, drives overall productivity and, ultimately financial performance.”

Sejen also says employers will have to address the growing need for more pay transparency, given the increasing expectation of openness regarding pay and pay equity.

“It’s becoming much easier for employees to gather salary information from online sources and learn what people with jobs similar to theirs are earning. But before they can be more transparent about pay, employers will have to make sure their programs are designed, administered and delivered effectively.”

Yet More to Know About Millennials

We’ve certainly seen our share of divergent reports about millennials in the workplace.

483717656-blue-collar-millennialWe’ve all seen and read the ones suggesting they’re a privileged generation with a less-than-stellar work ethic and an eagerness to jump ship on the smallest of provocations.

More recently, we’ve seen research that disputes those reports, such as one study from Project Time Off, mentioned in an HREOnline story on this demographic by Senior Editor Jack Robinson just last month. That study finds many millennials not only want to contribute and stay with their companies, but are putting in extra time — some even being referred to as work martyrs — to prove themselves as committed, loyal employees.

As Katie Denis, a senior director of the U.S. Travel Association, puts it in that story:

“People really do have this deeply ingrained assumption that it is an entitled generation, [but] if you look at the totality of their experience, you see something very different. Millennials do have a desire to grab a job, hold a job, prove themselves.”

Just late last month, an emailed release from the newly launched Levo Institute, a website run by and dedicated to millennials, introduced me to another often-overlooked faction of millennials: blue-collar millennials — more than 80 percent of whom say their employers are not providing them with the tools needed to appropriately scale their careers.

They want very much to work and stay with their companies; they just need help.

“As blue-collar workers make up 20 percent of the U.S. workforce,” the report states, “Levo’s study found that nearly 15 percent of its respondents are actively working as full-time blue-collar employees,” which is significant considering millennials will make up 75 percent of global talent over the next seven years. It goes on:

“Additionally, while nearly 60 percent of the millennial generation graduated from a four-year college, the perception is often that hiring a younger worker means lack of core professional skills, such as [energy and commitment], communicating effectively and working in teams.

“As the economy has continued to add [blue-collar] jobs in construction, manufacturing and transportation over the years, these findings are particularly important, especially as millennials [in these jobs] are not experiencing companies taking a vested interest in their development.”

In many cases, millennials are saying no to four-year college degrees altogether to avoid the miseries of having to pay off huge student loans for a significant chunk of their working lives, according to this story in the New York Post. They’re also pulling down some of the biggest salaries and best benefits while their fellow four-year graduates take up residence in their parents’ basements.

And there are plenty of four-year graduates turning to trades too. According to the Post, there were an estimated 1,000 who got in line in July in New York City for applications as apprentice plumbers.

What Now for Labor Relations?

Trump_by_Gage_SkidmoreUnions have had a pretty good ride during the Obama administration. That’s about to change, and it’s not hard to imagine a new age of labor strife dawning as Donald Trump settles into the Oval Office.

The Department of Labor and the National Labor Relations Board under Obama have favored rules that ease union organizing efforts. The agencies also have applied many standards that typically apply in a collective-bargaining relationship to nonunion workplaces as well.

Trump, however, is expected to embrace a traditional GOP pro-business stance. That makes it likely his agencies will be less friendly to unions. So, too, for federal judges and justices that ultimately rule on many tough legal issues involving labor. Trump also supports national right-to-work legislation. Does all that mean we’re headed for a more antagonistic relationship between management and labor generally?

Not necessarily. The Trump-labor relationship is complicated.

At least one union leader is talking tough. “We must pick ourselves up by our bootstraps and stand strong,” says Matt Loeb, president of the International Alliance of Theatrical Stage Employees, which represents workers in the movie industry. “We must demonstrate solidarity in an unprecedented way by locking arms as Brothers and Sisters.”

Of course, union members did not vote universally for Democratic nominee Hillary Clinton; exit-poll data suggest over 40 percent of the union vote went to her opponent.  Indeed, labor unions are as diverse as the industries they organize. At least one union leader welcomed the election of Trump, hailing him as a potential savior of jobs: Cecil Roberts, president of the United Mine Workers.

“Working families in our nation’s coalfields are very concerned about their future, and they made their voices heard loud and clear yesterday,” Roberts said. “President-elect Trump has spoken many times about addressing the serious economic disaster that is affecting large areas of Appalachia and other coal-producing areas of our country by putting coal miners back to work. No one is more interested in doing just exactly that than the UMWA.”

And Dennis Williams, president of the United Auto Workers, on Thursday also emphasized areas of agreement with the incoming president, according to Automotive News.

“Obviously, we’ll work with him on NAFTA. We agree that NAFTA needs to be renegotiated or ended,” Williams said. “We are prepared to work with him on a jobs bill and an infrastructure bill.”

There you have it: Part of Trump’s agenda aligns with union interests, and part does not. We’ll soon see what that means for the climate of labor relations in America.

The ‘Creepiness’ of Data Collection

In my search to read anything — anything! — unrelated to last night’s election, I came across a  new piece by Oracle’s Rob Preston on the Forbes site that takes a look at the “Continuum of Creepiness,” which rates how creepy an organization’s data-collection efforts may be perceived by employees.

New technologies, Preston says, allow employers to have many more ways to gather employee data to do things such as improve  their performance, gauge their sentiment, measure their engagement, monitor their safety and root out misconduct:

“And on the face of it,” he says, “some of those collection methods and data types may seem more ‘creepy’ to employees than others.”

“Data collected from electronic sensing badges, email headers, online calendars, and social media sites? Creepy. Data collected from employee surveys? Not so creepy.”

But before assigning something as “creepy” or not, we must first consider the circumstances before making sweeping judgments because “creepiness is contextual” according to  Dr. Mary Young, principal researcher in the area of human capital management at The Conference Board, who spoke on the topic at a recent HR workshop in New York.

Preston goes on to list the nine factors that influence the “creepiness” of an organization’s data-collection efforts, including: employees’ right to opt in or out of collection efforts, their trust in the employer and the benefit to employees, among others.

The entire post is well-worth a read, especially on a day when you might not want to read anything more about last night’s election. But for those who can’t get enough of such things, HRE Senior Editor Jack Robinson just posted a  piece on our site Wednesday morning that takes a look at how a Trump presidency will affect organizations’ HR policies and regulations.