Legislation to Counter ‘Ambush Election’ Rule

Last week, House and Senate Republicans announced the introduction of legislation intended to counter the National Labor Relations Board’s controversial
“ambush election rule,” the law firm Ballard Spahr recently noted in a legal alert.

(Eagle-eyed HREOnline.com readers will remember we recently covered the topic in a news analysis piece titled “Are Employers Being Ambushed?”)

The NLRB’s proposed rule, which was re-issued on Feb. 5, would significantly
reduce the time in which a union election can take place after the filing of an
election petition. Under the proposed rule, elections could take place in as few as 10
days after the filing of a petition. This would constitute a significant change
in the timing of union elections as they currently take place under the
existing regulations

In its alert, Ballard Spahr says “many employers oppose the proposed ambush election rule and believe that it undermines the rights of both workers and employers,” and to that end, Congressional Republicans have introduced two bills aimed at changing the proposed rule:

The Workforce Democracy and Fairness Act (H.R. 4320) requires at least a 35-day window between the filing of an election petition and the union election. This bill would preserve an s ability to litigate challenges to the petition and proposed unit in  pre-election hearings and would provide the NLRB adequate time to rule on any  outstanding issues.

The Employee Privacy Protection Act (H.R. 4321) would enable employees to choose in writing what type of personal contact information the employer is required to provide to the union after the processing of a representation petition. This package of legislation would nullify the NLRB’s proposed ambush election rule.

Stay tuned as this legal picture continues to develop…

Different Views of Retirement

88366557 -- retirement optionsTwo somewhat divergent reports on retirement vehicles crossed my desk this past week — underscoring the differences in demographics and philosophies that seem to be a part of the overall retirement picture.

One, a release from Towers Watson, shows sharp improvement in the financial health of America’s 100 largest pension plans and even possible pension de-risking ahead should this improved financial picture continue.

This is great news for pension plans, probably the best we’ve seen since the Great Recession. As Dave Suchsland, senior consultant at Towers Watson, says:

The rising stock market, combined with higher interest rates for the first time in five years, pushed funding levels significantly higher. This is good news for employers, as stronger pension fund balance sheets will reduce required cash contributions in the near term while lower pension costs will improve corporate earnings.”

More specifically, the analysis of year-end corporate disclosures found the pension deficits for these largest pension sponsors among U.S. publicly traded organizations fell 57 percent, from $295.5 billion at year-end 2012 to $125.9 billion at year-end 2013, a decrease of $169.6 billion. As the release puts it:

The pension deficit for these companies hasn’t been this small since 2007, when plans had a surplus of $82.3 billion. Meantime, the overall average funded status jumped 13 percentage points, from 78 percent at the end of 2012 to 91 percent at the end of 2013. That is the best funding level since the end of 2007, when the average stood at 103 percent. Additionally, the number of plan sponsors with fully funded plans surged from five at the end of 2012 to 22 at the end of 2013. At the end of 2007, half of these 100 plans were fully funded.”

In the words of Alan Glickstein, senior retirement consultant at Towers Watson, these improved funding levels — combined with recent increases in Pension Benefit Guaranty Corp. premiums and a newly released Society of Actuaries mortality study — ”will make de-risking actions very attractive in 2014.”

Then there’s this, a white paper from Buck Consultants showing younger workers — specifically millennials — prefer defined-contribution plans — specifically 401(k) and 403(b) plans — given their predisposition for mobility.

Here are some of the things Buck says employers should consider as they design the kinds of retirement plans that will attract and retain millennials (born early 1980s to early 2000s):

  • Attractive web portal that is easy to use and navigate. Millennials pride themselves on being tech-savvy and are used to state-of-the art retail websites, so websites should have links to frequently asked questions or pop-up windows with additional information.
  • Automatic enrollment with an escalating contribution feature. This is an important feature for millennials who tend to act later rather than sooner, and may not take the time for the thoughtful analysis needed for retirement planning.
  • Make it an outcome-based plan. Millennials will appreciate a DC plan that comes “fully loaded” with pre- and post-retirement features, helping individuals better prepare for retirement.
  • ROTH savings option. Millennials will likely be in a higher tax bracket as they approach retirement age. Showing the benefits of ROTH savings should improve overall satisfaction with the plan.

While pension plans are clearly not on the fast track to extinction we anticipated not that long ago, clearly worth noting in Buck’s piece is the importance of recognizing who you’re serving with what retirement vehicle.

Just my humble — hopefully not-too-convoluted — observation.

An Eye to the Future

As I’m sure many of you are aware, HRE has published a fair share of stories on the need for HR leaders to pay closer attention to their own talent pipeline.

159252853In light of this, I’d like to once again call your attention to an initiative introduced by the National Academy of Human Resources a number of years ago aimed at raising future leaders in the profession: The NAHR Ram Charan HR Essay competition, which is now open to undergraduate and graduate students majoring in HR, industrial/labor relations or related fields.  In addition to the priceless prestige that goes with being selected a winner, award recipients also receive handsome cash prizes of $20,000, $10,000 and $5,000. The deadline for submissions is Aug. 1.

This year’s topic ….

Performance Management – A Very Real Issue for Employers and Employees.  Students are asked to identify a new way to measure and improve employee performance that is efficient, effective, and will be embraced by employees because they view it as a fair system that is helpful to them in their career.  The new process must be measurable for effectiveness, contributions to the success of the organization, and reassure management that the right people are being rewarded.”

If you know of anyone who might be interested in participating in this competition, please pass on the above link.

And if you’d like to get a sense of some of the original research and thinking that resulted from last year’s competition, check out the first, second and third place winning entries, submitted by Tiffany Scheff and Josie Trine of Cornell University’s ILR School; Joseph Redlitz of Rutgers University, and Indranil Dey of the Asian Institute of Management in the Philippines, respectively. Their topic: “How are electronic technology and social media affecting the employment relationship between employers and employees; and the roles, responsibilities and contributions of HR organizations?”

I suspect those of you who do will walk away feeling a bit better about the profession’s future.

Will Employers Stop Offering Health Benefits?

Ezekiel Emanuel (an oncology doctor, professor of ethics at Penn and brother of Chicago mayor Rahm Emanuel) was one of the architects of the Affordable Care Act — which, as we all know, mandates that employers with at least 50 full-time-equivalent employees provide health insurance. So it’s a bit surprising to learn that Emanuel has just written a new book in which he predicts that, as a result of the ACA, most employers in the United States will have stopped offering health benefits to their employees by 2025.

Why will companies stop offering health benefits? Because, Emanuel argues in the book — Reinventing American Health Care: How the Affordable Care Act Will Improve Our Terribly Complex, Blatantly Unjust, Outrageously Expensive, Grossly Inefficient, Error Prone System (how’s that for a title?) — the online insurance exchanges will provide employers with a viable alternative for doing so. Now, after you’ve picked yourself up off the floor from laughing so hard at the idea of Healthcare.gov being described as a “viable alternative” (although many of its worst bugs appear to have been fixed), note that Emanuel does acknowledge the botched rollout of the federal online exchange and some of the state ones, yet he describes others (such as Connecticut’s state exchange) that are working well. If all of the exchanges are fixed to the point that consumers can obtain health insurance by spending only 30 minutes or so enrolling, he says, then companies will indeed have a viable alternative to the expense and administrative hassles of providing benefits and can instead simply give their employees money to go out and purchase benefits on their own. The ACA’s excise taxes on high-cost health plans scheduled for 2018 are yet another incentive to get out of the health-benefits game, says Emanuel.

Private exchanges, which are essentially a defined-contribution approach to health benefits, have certainly sparked a lot of interest among employers lately. As many as 33 percent of respondents said private health exchanges would be their preferred approach to managing health care in the next three to five years, up from 5 percent now, according to Aon Hewitt’s Health Care Survey of more than 1,230 employers covering in excess of 10 million employees (Aon happens to be one of the vendors that offers a private exchange; others include Towers Watson, Buck Consultants and many smaller vendors). Brian Poger, CEO of consulting firm Benefitter, said at the just-concluded Health & Benefits Leadership Conference in Las Vegas that for many employees — especially low-wage workers with families – the health coverage available on public exchanges might be a better deal than that provided by their employers, considering that many have cut back or eliminated coverage for spouses and families.

Jettisoning traditional health benefits has yet to become a major trend among U.S. employers: Accenture estimated that 1 million employees enrolled in private exchanges last year, a tiny percentage of the nation’s workforce (although it also estimated that number could grow to 40 million by 2018). There is also the risk that employees on private exchanges will “buy down” — that is, purchase less-costly plans that may ultimately leave them with less coverage and worse health outcomes than traditional health plans, which tend to have “marginal” price differences, Mike Thompson, healthcare practice leader at PwC, told me last year. Companies that switch to private exchanges may also risk breaking the linkage between benefits and wellness, he said.

The expression “paradigm shift” is an overused cliché, but it’s clear we’re in one now when it comes to health benefits. Rest assured we’ll continue to cover this area closely.

Layoffs and Litigation

Gavel and JudgeSome employees may breathe a sigh of relief after surviving not one but two reductions in force. Roger Maxwell filed a lawsuit.

Maxwell, a disabled veteran and former manager of customer service with the U.S. Postal Service in Bloomfield Hills, Mich., filed an internal EEO charge in 2004 (for reasons not specified in Roger L. Maxwell v. Postmaster General of the United States).

Sometime after the EEO proceedings concluded, Frances Chiodini—an HR manager representing the Postal Service during the proceedings—adopted “an undisguised attitude of hostility toward [Maxwell] and undertook, over time, consistent adverse actions against Plaintiff in his employment,” according to the suit.

Among the allegations:

• Chiodini took adverse actions against Maxwell because he is male, and wrongfully rejected him from consideration for a promotion, which was subsequently awarded to a less-qualified female applicant.

• Maxwell was not included in a 2009 reduction in force, depriving him of a promotion and pay raise.

• His position was not upgraded from EAS-20 to grade EAS-21, while a “similarly situated” female was upgraded.

• Maxwell was not included in a 2010 downsizing, which again deprived him of a promotion and pay raise.

That’s right. Maxwell claims that emerging with his job after two rounds of layoffs adversely impacted his employment with the Postal Service.

How so?

As a disabled vet, Maxwell maintains he would have had certain rights in the event his position was included in a reduction in force, in the form of either an automatic upgrade to a new role or the permission to vie for a new position at a higher level. Instead, he was involuntarily transferred to a different facility, according to the complaint.

Maxwell subsequently sued, claiming retaliation and gender bias. While the Postal Service argued the transfer didn’t qualify as an adverse employment action, a trial court recently found that the transfer—which occurred in lieu of a promotion—could potentially constitute an adverse action.

The ruling is “fairly fact-specific and at a very early stage of litigation,” but the Maxwell case still holds lessons for employers and HR, says Eric Stevens, a Nashville, Tenn.-based attorney with Littler Mendelson.

“The transfer, in and of itself, appeared to be a neutral event,” says Stevens. “There was no change in compensation, duties, title or working conditions. Typically, such a move would not be considered a materially adverse change.”

However, he notes, the appeals court considered the potential effect of the transfer—disqualifying the plaintiff from an alleged automatic upgrade and pay increase—and found that effect sufficiently material to allow Maxwell to continue with the portion of his lawsuit relating to the transfer.

“There are occasions in which an employee may have been subject to inappropriate, possibly even unlawful treatment in the past,” continues Stevens. “Some employers, when they become aware of such circumstances, feel bound to avoid managing the employee as others would be managed because of that past improper conduct.”

This opinion demonstrates that, in the absence of a “longstanding and demonstrable policy of discrimination, an employer will not necessarily be liable for past, discrete violations,” he says.

“While no such violations should be countenanced by the employer, if one does occur, the employer should deal with it appropriately, and then continue to treat the aggrieved employee the same as any other employee.”

Who Are You Calling Lazy?

As a proud member of Generation X (those of us lucky enough to be born between approximately 1965 and 1982), I can still recall very clearly many of the stereotypes that were flung at my cohort in mid-to-late 1990s, just as many of us were preparing to leave the college bubble and strike out on our own in the great wide workplace.

Admittedly, some of those stereotypes were pretty spot-on, such as the one that made light of our collective over-reliance on flannel shirts, ripped jeans and Doc Martens to build our wardrobes.

But others, such as the one that decried our generation as shiftless and lazy (read: “slackers”) just as we were entering the job market – seemed to be equal parts incorrect and mean-spirited.

Welcome to the workplace, indeed.

So it was with a mixture of relief and remorse that I read Mitchell Hartman’s New York Times piece titled ”Millennials at Work: Young and Callow, Like Their Parents.” (Hartman is a senior reporter for the public radio program “Marketplace.”)

In the piece, Hartman appears to create a portrait of today’s millennials by using many of the very same brush strokes used to paint Generation X into the same corner ‘lo those many years ago:

In surveys, middle-aged business owners and hiring managers say the new workers lack the attitudes and behaviors needed for job success. They don’t have a strong work ethic, these reports say. They’re not motivated and don’t take the initiative. They’re undependable and not committed to their employers. They need constant affirmation and expect rapid advancement.

A recent report by Bentley University for example, found more than half of corporate recruiters rated recent college graduates with a grade of C or lower for preparedness; nearly seven in 10 said young workers were difficult for their organization to manage. The Pew Research Center found that more than half of college presidents thought today’s students were less prepared, and studied less, than students did a decade ago.

But then Hartman says complaining about youth on the cusp of adulthood is nothing new, and goes on to quote HREOnline.com’s own Talent Management Columnist Peter Cappelli:

“You can find these complaints in ancient Greek literature, in the Bible,” said Peter Cappelli, director of the Center for Human Resources at the Wharton School. “It reflects the way old people see young people.”

Professor Cappelli said that young peoples’ attitudes toward work and career had not changed significantly since the baby boomers came of age in the 1960s. “There’s no evidence millennials are different,” he said. “They’re just younger.”

The piece goes on to lay out the factors working for — and against — millennials in the workplace, from the negatives associated with their sense of entitlement and need for affirmation, to their positive reactions to concepts such as collaboration and working outside of a 9 to 5 schedule.

But for me, the kicker is when Cappelli challenges today’s middle-aged managers to remember when they were 22:

“You probably wanted to get out of the office in a hurry — you were interested in what was going on after work,” he said. “You had these bursts of energy and great enthusiasm about something, but you also didn’t have a lot of resilience.”

Upon finishing the piece, I felt a deep sense of relief from knowing my generation (X) was not alone in being unfairly characterized by the preceding one.

But that relief was tempered with remorse, because I also realized I had been blindly accepting all those same stereotypes about millennials being just as bad as my generation was believed to be.

Talk about lazy!

Another Sign Your Talent May Be Bolting: Hooky

160611067-- sick employeeA month ago, almost to the day, Editor David Shadovitz posted this about a Utah State University professor’s study laying out specific behaviors to look for in top talent about to head out the door.

I thought the signs themselves, as revealed by researcher Tim Gardner, were interesting and deserve repeating. Employees about to leave, he found:

  • Offered fewer constructive contributions in meetings;
  • Were more reluctant to commit to long-term projects;
  • Became more reserved and quiet;
  • Became less interested in advancing in the organization;
  • Were less interested in pleasing their boss than before;
  • Avoided social interactions with their boss and other members of management; and
  • Began doing the minimum amount of work needed and no longer went beyond the call of duty.

Now, thanks to this from Monster Worldwide, we have another dimension to offer up in this flight-detection protocol: playing hooky. Or at least playing “I have a doctor’s appointment.”

According to Monster’s global poll, based on votes cast by Monster visitors from Dec. 2 through 6 of last year, 44 percent of respondents consider telling their boss they have a medical appointment to be the best excuse to leave work for a job interview.

The second-most-popular choice for getting out of work to interview for other work is also health-related: saying they’re sick, weighing in at 15 percent. Of course, the way I see it, both excuses — especially the latter — requires some play-acting as well, so perhaps there are some additional behavior traits we can read between the lines.

There were other non-health-related excuses — childcare, at 12 percent, and delivery/repairman at 8 percent — but faking personal health challenges topped the chart.

Especially interesting, I thought, were the differences in faking forte by country. As the Monster release states:

French respondents are the most likely to create faux doctor’s appointments when sneaking out for interviews, with 54 percent answering that they believe it is the best excuse;      conversely, French respondents are the least likely to fake an illness to excuse an interview-related absence, with only 7 percent selecting it as the best option. Respondents in the United States were the biggest proponents of the call-in-sick method, with 16 percent choosing illness as their preferred excuse. Canadian respondents were the least likely to use a delivery/repairman excuse, with under 7 percent selecting this option and were the most inclined to use a childcare-related excuse, with 16 percent picking this answer.”

Mary Ellen Slayter, a career-advice expert for Monster, says all employers ought to look at this as a reminder that “they have no choice but to be on both sides of this coin.”

“Making it easy for people to be honest is a good approach,” she says. “That means when you’re recruiting, make an effort to schedule interviews before or after work hours — or perhaps at lunch. With your own workers, don’t press them about how they’re spending their requested time off.”

As for what you’re supposed to do when you notice your top talent scheduling an inordinate number of doctor’s appointments, that’s anyone’s guess. I would think that might be a good time to start examining their engagement levels.

How Netflix Revolutionized HR

That’s the title of a new video interview on Huffington Post featuring former chief talent officer Patty McCord talking about some of the more innovative ways Netflix tended to its workers during her tenure.

McCord spoke with HuffPost Live’s Caroline Modarressy-Tehrani about some of the company’s most innovative human resource moves, including getting rid of paid time off and moving toward a more flexible alternative. McCord said the idea seemed crazy to some, but it made perfect sense to her.

“We realized that for our salaried, professional employees, we weren’t keeping track of the time they came to work, the time they left for home. We were keeping track of the work they did,” she said. “It seemed kind of ridiculous to have all these policies about what whole days you could take off when … people work at home, they work on their phones, they’re involved in their activities that are about what they accomplish all the time.”

And while it’s always gratifying to see HR popping up in headlines on popular news sites such as HuffPo, it’s worth noting our own Senior Editor Andrew R. McIlvaine profiled Ms. McCord’s work at the movie-streaming site all the way back in 2006.

Rough Road Ahead for HR?

rough roadFindings from a new study suggest HR departments aren’t ready to respond to the talent challenges facing them now and in the days to come.

The Deloitte Global Human Capital Trends 2014 report compiled data from a survey of 2,532 business and HR leaders at organizations from 94 countries around the world. In the poll, 86 percent of respondents cited leadership development as the biggest challenge for their organization, followed by employee retention and engagement (79 percent).

At 77 percent, “re-skilling the HR function” ranked as the third most-pressing issue, with many executives feeling their HR teams lack the skills and data they need “to understand today’s global business environment, local labor markets, evolving workforce demographics, shifts in technology and the changing nature of work itself,” according to a Deloitte press release.

For example, while 75 percent of respondents rated “workforce capability” as an “urgent” or “important” challenge, only 15 percent said they believe they are ready to address it. More than two-thirds of those polled (70 percent) see new learning methods such as free online and mobile learning platforms as urgent or important, but just 6 percent say they have mastered the content and capabilities necessary to make online learning accessible and digestible for employees.

Overall, more than one-third of the business leaders polled (34 percent) said their HR and talent programs are just “getting by” or even “underperforming,” with less than 8 percent of HR professionals expressing confidence that their teams have the requisite skills for today’s global environment.

While leadership may be underwhelmed with HR’s performance, it seems many organizations aren’t doing a great job of equipping HR teams with the tools they need to keep pace, either.

In the study, 43 percent of respondents described their organizations as “weak” in terms of providing HR with the appropriate training and experience, with 47 percent saying the same with respect to preparing HR to deliver programs aligned with business needs.

With “radical shifts in demographics and technology” occurring, “doubling down on the human capital practices of the past” won’t be enough to help HR teams do more than just get by in the future, said Josh Bersin, principal and founder of Bersin by Deloitte, in a statement.

“The research shows that organizations should re-imagine their approach to engaging people and move to re-engineer many of their HR practices,” according to Bersin. “Attracting top talent has become a serious competitive issue that demands attention at the highest levels of the organization.”

Innovation Central

One of the most dynamic sessions at this year’s Health & Benefits Leadership Conference was the “Ideas and Innovators” session, in which experts from a variety of fields give five-minute presentations summarizing their thoughts on what HR leaders should do differently with regard to benefits.

Here’s a sampling of what some of them had to say: Lindsey Pollak, a millennial workplace expert and spokeswoman for The Hartford insurance company, called on companies to encourage mentoring between baby boomers and millennials. “Ninety percent of the millennials we surveyed said they appreciated guidance from boomers,” she said. “Millennials are digital natives, so they can mentor boomers in the use of technology.”

Millennials want the ability to customize their benefits, she said: “Millennials weren’t given teddy bears as kids; they were taken to Build-a-Bear workshops — they’re used to having things tailored for them.”

The same Hartford survey found that 70 percent of millennials consider themselves leaders, whether in their families, workplaces and communities. Companies can harness this leadership spirit for health and wellness, said Pollak — yet must keep in mind that millennials have also proven to be slow to sign up for benefits such as disability insurance. “Millennials aren’t taking advantage of these benefits — you must reach them on this.”

Brian Poger, founder and CEO of consulting firm Benefitter, urged employers to consider getting out of the business of providing health benefits (perhaps an odd thing to hear at a conference devoted to employee benefits). “Most employee raises are being absorbed by rising healthcare costs,” he said. “Why not offer cash instead of health benefits?”

Poger cited a McKinsey survey that found 85 percent of employees would stay with their employer even if they stopped offering health benefits. Many employers are charging signficantly higher premiums for spousal and family coverage or dropping it altogether, he said, which can be a major hardship for families earning the U.S. median household income of $51,000 a year. “Giving employees cash to purchase a family policy on the exchanges may be a better deal for them,” he said.

Lexie Dendrinelis, health promotion and wellness leader at manufacturing firm Barry-Wehmiller Cos., discussed how her company has made leadership and culture — rather than exercise and eating well — the centerpiece of health and wellness. “People can’t focus on their personal health if they’re stressed out about an unsafe workplace,” she said. “Building trustworthy leaders and cultures is the best intervention.”

At Barry-Wehmiller, the company has committed to building a “caring culture” where “we are committed to sending our friends home safe, well and fulfilled.” The company uses incentives and rewards to highlight positive behaviors and takes a “holistic approach” to caring for its employees and families, said Dendrinelis. “We are looking at creating a thriving culture that will bring down healthcare costs.”