I Am Part of the Problem

I Am Part of the Problem: Misogyny in the Workplace

This was shared with me recently. Given …life recently, I thought it was worth sharing with others in the HR community, especially as we head into the week of #SHRM16. – Michael

Several events in the past couple of weeks have led me to turn inward. I’m debating job change with the sub-debate of whether I want to return to HR and Employee Relations. There are things I am very good at within that sphere. I enjoy being a part of creating solutions to damaged work environments and relationships. Two things this week have led me to second-guess my role in the passive advancement of misogyny in the workplace.

A little over a week ago, the victim of a terrifying rape released her victim’s statement to the predator who raped her unconscious body but got a scarily lenient sentence. Shortly thereafter, a terrorist attacked The Pulse, a gay club in Orlando, killing dozens of innocent men and women. While the two are not at all similar, the combination of events made me question the role I have played in investigation and analysis of harassment and unwelcome behavior of any kind in the workplace.

I work in an environment that is primarily male, primarily Christian, and primarily conservative. I have turned away or kept my thoughts to myself when jokes about the LGBT community are voiced, I have held my tongue when their rights are questioned. I have committed the crime of inaction and not speaking when I felt it would be damaging for my esteem or when I was unsure of if my speaking out would be supported. I’ve heard our CEO talk about the micro-aggressions women and minorities in the workplace hear day in and day out – and believe me, I have kept micro- and macro- aggressions based on my gender to myself more than I’d like to admit – but I don’t think he really knows what that feels like or what falls outside his filter. The crime here is passive, one of ignorance and carelessness. We continue to ostracize the LGBT community and all of its members by not being openly welcoming; by not broadcasting an open and protected environment, by not addressing their safety and protection when in the public, and by not recruiting within the community. Of course, our workplace probably isn’t the most open or protective, — and because our state is not protective, there is no financial incentive for us to change. But my voice does not have be silent.

I have also misapplied my voice in another area, and this is one that I see common across HR and legal departments. I cannot tell you the defensive, adrenaline-based glee an HR or legal department will take when a woman files a complaint (either within the “system” or within company-reporting mechanisms) of sex harassment. I cannot tell you the number of mindless emails I have read between said complainant and everyone else in the world to find a reason her complaint would not be valid. Of course, protecting the company is paramount, but what if we’re protecting the wrong thing? What if all of those stacks of performance reviews that show less than rock star performance or the flirtatious emails with another coworker mean absolutely nothing? What if by investigating that way, we create an environment when victims don’t come forward because they don’t want their lives examined piece by piece? Are we really victim blaming when an employee complains? I like to think of several investigations I have done where this was not the case, — where I looked at the situation in isolation and showed the appropriate compassion for the complainant. But, I know I have also fallen prey to the Eureka! moment when I find something unsavory to use against a plaintiff prior to the Company’s response or a deposition.

It hit me like a ton of bricks when I thought of it that way. Men that know this is the approach a company takes feel free to treat women as sexual objects in the workplace, they feel freer to make sexist comments, they feel okay to show the power they have over women. They know the burden of proof is on the complainant, and that everyone knows she doesn’t have a squeaky clean slate (because who does, right?). And so many women will not share what it is really like day to day. I have tried to capture for myself what it is really like to be a woman in the workplace, — but can’t believe the words I’ve written myself. Why is the bright-line test creating doubt about the employee’s record or behavior instead of finding irrefutable proof from the accused? This is a watered-down version of what defense attorneys do with rape survivors, re-victimizing them in public and on-record. I wholeheartedly believe the accused are innocent until proven guilty, — but defendants in public trial have to at least show their whereabouts and records along with the record and whereabouts of the plaintiffs. Why don’t we look at it the same way? Is it because our competitive nature kicks in when a claim is filed, getting our adrenaline running to play defense? Is it because we never liked her anyway? Is it because we’ve put up with a lot worse and never complained? Is it because we second-guess our own worth in the workplace?

I don’t have answers. I do have resolve – to give a voice to those not at the table (or those at the table but afraid), to give compassion to complaints because I know how hard it is to report, and to resist the urge to get amped up for the hunt if one falls onto my desk. Today, I am sad. For the families and community with hurt rippling from a popular club in Orlando. For a hurting rape victim working to rebuild her life with the knowledge that her strong stance has helped so many others. For women worried about reporting inappropriate sexualization of the workplace because they really just need their job. For any part I may have had in allowing these broken parts of our society to find a home in our workplace.

Q&A with #SHRM16 Speaker Chad Richter

Q&A with #SHRM16 Speaker Chad Richter chad richter

The annual SHRM conference starts in just 6 days. I’m blogging for SHRM again this year.  One of the things they asked us to do is to feature one of the speakers from the conference. Here’s my Q&A profile with speaker Chad Richter, who will covering labor and employee relations developments in his presentation.

Q1. Chad, What’s your background and legal specialty? 

I have always represented management with regard to labor and employment law matters.   I have been practicing in the area of management side labor and employment law since May of 2000, almost 16 years . (i.e. 16 years).  My practice is divided into three main areas: (1) preventive counseling and training; (2) traditional labor law; and (3) workplace litigation.

Q2. What topic are you covering at #SHRM16?

The name of the presentation is “Surveying the New Labor Law Landscape:  A Rocky Road Ahead”   The session will provide an overview of the NLRB’s recent activity and how it affects all companies whether union or non-union.   This session will help attendees: (1) gain an overview of labor law trends and how they affect their organization; (2) Understand how the NLRB’s focus on expanding employee Section 7 rights makes many current business practices risky; and (3) learn practical recommendations to bring back to their organization.

Q3. What keeps you (and your clients) up at night?  

The significant labor law changes that have occurred, the changes likely to occur in the coming months, and the impact on my client’s overall business.   American businesses today are struggling to compete, attract a talented workforce and trying to stay ahead of daunting regulations.   Given the increase in federal and state regulations, the challenges are compounded almost daily for employers in all areas of the country.

Q4. What do you see coming on the labor law front in the next 6-12 months that employers need to be preparing for?

I anticipate the NLRB will continue to scrutinize employer policy language that arguably has a chilling impact on employees’ Section 7 rights under the NLRA.   I also anticipate the NLRB to broaden the impact of joint employment and the composition of the bargaining unit with regard to temporary workers.  In preparation for these changes, we recommend employers review their external relationships to minimize risk of joint employment status and review policies and procedures from a traditional labor law perspective more frequently given the Board’s scrutiny of employer policies.

Q5. What;s the one thing you are going to do in Washington DC that isn’t related to #SHRM16?

One of my favorite restaurants is located in DC down the street from the White House.  It’s called Old Ebbitt Grill and I plan to eat dinner there one of the evenings while I’m in DC.

See you in Washington D.C.!

 

Get Everything You Need at #SHRM16

Get Everything You Need at #SHRM16  persuader

I was talking with a friend the other night about what a challenge it is for HR professionals to stay up-to-date on all the changing rules and regulations that the Obama administration is throwing at us in their final days.

We still haven’t completely figured out ACA, and now we get to deal with even more hot steaming bowls of ….agency alphabet soup.   DOL and the OT rule….NLRB and PCA…. OLMS and the LMRDA. What?

Fortunately, SHRM has you and about 15,000 other HR pros covered in Washington D.C. starting June 18th.  It’s not to late to register and get the scoop on sessions like these:

And don’t forget the Persuader rule. This rule will impact every employer in the US, whether or not you have a union. I won’t be presenting this year, but here’s some bonus info on the new DOL Persuader Rule.

Latest Persuader Rule News

The information below is an important update on enforcement of the Persuader Rule. The information comes from one of our Labor Lawyer Advisory Committee (LLAC) members via the US Chamber of Commerce.  All of this information is provided for your general information and understanding  and should not be construed as legal advice.

OLMS Update on Persuader Rule

The first resource is a link to a YouTube video in which the Office of Labor-Management Standards (OLMS) presents an overview of the Forms LM-10 and LM-20 persuader reporting requirements, pursuant to the persuader final rule published on March 24, 2016. OLMS held the presentation in the Department’s Frances Perkins Building, Cesar Chavez Auditorium, on Thursday, May 26, 2016 from 2-4 p.m. EDT

Chamber of Commerce Update

The final persuader regulation states, “This final rule is effective on April 25, 2016. The rule will be applicableto arrangements and agreements as well as payments (including reimbursed expenses) made on or afterJuly 1, 2016” (emphasis added).  The “effective” versus “applicable” dates are clearly confusing.  As part of the legal challenge to the rule in the Eastern District of Arkansas, DOL filed the attached status report which clearly states that July 1 is the practical effective date:

While the effective date of the Rule is April 25, 2016, the rule is only applicable to arrangements and agreements made on or after July 1, 2016, and to payments made pursuant to arrangements and agreements entered into on or after July 1, 2016. 81 Fed Reg. 15924. The Rule revises the reporting requirements, and related recordkeeping requirements, for certain agreements and arrangements entered into between employers and labor relations consultants or other independent contractors, and payments made pursuant to those agreements and arrangements. The Department will not apply the Rule to arrangements or agreements entered into prior to July 1, 2016, or payments made pursuant to such arrangements or agreements. Consequently, under the Rule no employer, labor relations consultant, or other independent contractor will have to report or keep records on any activities engaged in prior to July 1 that are not presently subject to reporting, or file the new Forms LM-10 or LM-20 (revised pursuant to the Rule) for any purpose prior to July 1.

What’s the takeaway?

Employers may have a window of about 3 weeks to get agreements in place with labor counsel or consultants that then not be reportable under the new OLMS rule, assuming they are pursuant to an open-ended or multi-year agreements that existed before July 1, 2016.  Again, this should not be interpreted as legal advice, and you should check with competent legal counsel before making any final decisions.