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After the mass rollout of COVID-19 vaccines during spring 2021, Americans were looking forward to the end of the pandemic as millions were vaccinated. The optimists included not only individuals but also companies eager to get staff back into offices after more than a year of working remotely. While the highly publicized Delta variant has created uncertainty among employers with respect to their back-to-office plans, many have already reopened, and others are forging ahead with pre-Delta reopening plans. In this feature, we look at how companies that have reopened have fared in terms of logistics, morale, safety, and other issues.
Safety First
First and foremost, companies need to ensure their return-to-work plans focus on the health and safety of their employees and customers. This means considering vaccination policies and sanitation procedures, as well as keeping an eye on local, state, and federal guidelines related to the ongoing pandemic.
“An employee cannot do their best work without feeling safe in their work environment,” says Jessica Zhao, Chief Marketing Director at Spacewhite. “As an employer, it's your job to make sure all safety needs are met. This was a huge learning process during the pandemic as our understanding of what was safe became radically shifted. Going forward, make sure to keep up with all public health orders in regard to COVID-19, and other threats to public health.”
Treat the Return to the Office as the Major Initiative It Is
Transitioning a remote workforce back to the office is a major undertaking, and it should be treated like one. This means getting collaboration and input from key members of leadership to coordinate and execute a successful strategy.
“Gather a team and get coordinated,” says Natalie Sheils, Vice President of People and Culture at Mosaic Group. “Bringing employees back to work has to be a well-planned and executed process, as it impacts most functions, departments within the business.” Sheils recommends coordinating with the leadership team and key departments like HR, IT, facility management, financial, and legal to create a plan and process for returning employees back to their physical work settings. They can then look at and consider “current business practices from multiple perspectives and advises on how best to adapt them,” she says. The same group could also be consulted on corporate policy decisions on anything related to returning to work, Sheils adds.
Transparency
Regular, transparent, two-way communication is essential to getting the return to the office right. Employers can go a long way toward reducing their employees’ stress and anxiety by being as open and transparent as possible with communication and information-sharing. Treat employees like the adults they are, and be upfront with safety, staffing, and other concerns.
Similarly, employees should be encouraged to provide as much feedback as possible to help management make any necessary policy changes and adjustments. Again, the transparency needs to be two-way transparency.
Effectively soliciting feedback from employees isn’t as simple as asking for it once and expecting insights to roll in consistently. Managers need to continually encourage employees to speak up and create a positive feedback loop by actually listening to and—to the extent the feedback is constructive and appropriate—acting on that feedback.
“Listen to your employees—gather as much feedback as possible to ensure you're addressing their needs and prioritize accordingly,” advises Maria Aveledo, Chief Business Officer of Octante.
Flexibility
One of the key words used by many of the experts we received feedback from was “flexibility.” Employees’ lives have been completely upended by the COVID-19 pandemic. And while pathogens and communicable diseases don’t care about child care, death and illness in the family, or a spouse’s income in the service industry, employers can and should care.
“Anticipating that some employees will have concerns regarding their return to work and developing response protocols for addressing those concerns was key in preparation to return to work,” says Sheils. “We know by now COVID-19 has had heavy mental health impacts on people. In introducing more change, we had to be sensitive to employee needs and strike a balance between employee safety, well-being and business operational needs.”
In addition to these mental health and well-being concerns, employers should embrace flexibility that improves performance and productivity. For some workers, that might mean returning to the structure of the office, and for others, it might mean the ability to work in a home office.
“The pandemic highlighted how important flexibility is for us and that there's not just one way to approach everyday workloads or tackle problems,” says James Edge, founder of Crush the USMLE. “Every company should strive to be flexible with their capacity to make sure every employee thrives in whichever environment that suits them better, whether it’s having a bit more time to work at home or providing a positive office environment,” Edge notes.
To What Extent Is Past Experience a Benchmark?
Returning to the office is less of a culture shock in many ways than shifting to remote work. The very fact that employees are “returning” to the office means they’ve been there before. Generally, employees are familiar with the in-office culture, the cadence of meetings, etc.
Of course, many companies have hired new staff since the start of the pandemic, many of whom have never been to the pre-COVID office. Moreover, so much of pre-COVID culture has changed, and attitudes around meetings, sanitation, etc., have all been impacted. This means that past experience with pre-COVID, in-office work is valuable, but employers shouldn’t expect things to go back to exactly how they were pre-pandemic.
Learning from the ‘Early Adopters’
When companies began shifting to completely remote work arrangements at the start of the pandemic, few had managed a completely remote workplace, but many had managed some portion of their staff remotely for years. This provided at least some experience to work with when dramatically expanding remote work.
Similarly, while the general policy for companies that could accommodate it was to shift the vast majority of the workforce to remote work, there were many exceptions. Some functions, such as IT, maintenance, and others, necessarily remained on-site, and other organizations made exceptions for key senior staff to remain in the office. This means that companies aren’t necessarily starting from scratch when it comes to bringing staff back to the office post-COVID. Companies should strive to learn what they can from those who have come back to the office early, as well as those who never left.
Bringing staff back to the office post-COVID is not as simple as e-mailing the team and letting them know the building is open again. For most companies, the post-COVID office will look very different from the pre-COVID office. Fortunately for readers, many companies have already started bringing staff back, while many others have spent a great deal of time and mental energy planning for this return. These insights should be carefully considered for others on the cusp of an office return.
What steps are you taking to bring employees back to the office safely and productively?
With the exception of sleep, a job is the No. 1 time-consuming activity for the average person. Most people spend one-third of their lives at work, which equates to 90,000 hours over a lifetime. Now that’s a lot of time, especially if you’re not building and maintaining healthy habits.
This means your employees are spending a ton of time in meetings, in their e-mail inboxes, and interacting with their coworkers more often than they are interacting with friends and family.
The question is: How can you support your employees as they build healthier relationships in both their personal and their professional lives?
Healthy relationships are formed by building mutual trust, respect, and understanding. Empowering employees to cultivate and maintain these relationships at work and at home benefits not only the individual but also your company as a whole.
Workers who feel accepted, valued, and empowered are much more likely to go the extra mile for their team. The most important factor is nurturing psychological safety, which creates a space where employees are encouraged to provide their input without fear of repercussions.
Here’s how your organization can create an empowering environment at work by implementing social well-being practices in employees’ day-to-day schedules.
Create a Sense of Safety and Belonging
An emotionally safe work environment is crucial for your team members to feel like they can perform at their best. Employees need to experience a sense of reassurance by understanding just how much they matter to the team. Additionally, healthier relationships naturally begin to form when there is a culture of psychological safety. This means employees know they won’t be punished or humiliated for speaking up with ideas, questions, concerns, or mistakes.
A psychologically safe environment encourages employees to engage more and actually share their honest thoughts, opinions, and ideas.
Employee engagement correlates to many quantifiable benefits, as well, such as productivity, retention, and satisfaction. Happier team members are more likely to contribute equally to the team and help their coworkers do the same. In your next all-hands meeting or company town hall, dedicate some time during the agenda to thank employees for their hard work and allow others to recognize each other. You can also ask team leaders to identify some areas that can be improved within the organization and create an open feedback loop that allows employees to share their ideas and opinions, as well. Recognizing the value every individual brings to the table is a great way to ensure employees feel heard and appreciated.
Encourage Team Connections
Trust and loyalty are formed by diving beyond the surface level of the people around you. Personal connections help build deeper relationships, which, in turn, results in a much more collaborative and engaging work environment. A great way to encourage team connections is by implementing a wellness program. Whether the team is co-located, distributed, or a mix of both, wellness programs can bring employees together and create a more positive workplace.
You can also start small by hosting a weekly meditation session. No matter whether your team is in person, remote, or hybrid, a consistent mindfulness practice can help your employees feel connected and remind them to take a break from any stress from the day.
The success of a company is directly related to the success of its employees. When a team communicates effectively, productivity and efficiency skyrocket. Work is also far more enjoyable when there is a strong bond among coworkers, which is just another reason personal connections are a win-win for everyone.
Establish a Clear Source of Communication
Seventy-six percent of business leaders state that a soft skill like communication is more in demand and crucial than job-specific skills. The ability to communicate creates a streamlined work environment where any ideas or concerns can be voiced freely.
Every person has an individual communication style. It’s important for teams to learn and understand what works best for each team member in order to optimize daily connections. Do team members like to chat via Slack or e-mail? How quickly can someone expect a response to a message?
Identifying and explaining these communication “rules” for employees will reduce misunderstandings, mitigate conflict, and continuously develop interpersonal relationships. As a result, employees will repeatedly improve their communication skills on both personal and professional levels.
Advocate for a Strong Work/Life Balance
Healthy relationships help nurture a sustainable work/life balance, which is another reason advocating for overall employee well-being plays such a powerful role in the process. For many individuals, the balance between a job and personal life seems nearly impossible. However, balanced workers are typically happier, more productive, and more likely to stay with the company.
Studies show that employees take 26% of their work home with them, which likely creates tensions in their home life. Unplugging from the workday is crucial not only for personal well-being but also for building healthy relationships outside of the workplace. Managers should also model the act of taking time off from work by doing it themselves and communicating the value of it to their team.
Building Healthy Team Relationships Is a Long-Term Investment
Authentic connections are a vital part of personal and professional communication. However, empowering a team with relationship-building skills is not a one-and-done scenario. The key is to continuously find ways for employees to connect and continue creating meaningful experiences together.
It’s time to witness the positive effects that healthy relationships will have on your workplace.
There are plenty of qualities that make employees a great fit for your company. You want employees who are hardworking, loyal, ethical, efficient … the list could go on and on.
But one trait you can’t neglect? The ability to work well on teams. You could have the most skilled person in your industry on your payroll, but if he or she isn’t skilled at working with others, you’re going to run into problems. Unless you have a company of one, you need to emphasize the ability to work on a team when recruiting new employees.
Why are high-quality teammates so important? First and foremost, bad teammates lead to high turnover. If you have an employee on your staff nobody can stand working with, you’ll be able to tell pretty quickly. Morale will plummet, and a large number of employees will start to quit. That leads to high turnover, meaning time and resources that need to be spent on new hires. It’s much easier to prevent the problem before it even starts by only hiring people who work well on teams. Second, bad teammates lead to a lot of dropped balls. If your team is depending on a particular person to handle an aspect of your business and he or she consistently fails, the company won’t be able to maintain traction, and you’ll be constantly covering for that teammate’s mistakes. Good collaboration will lead to a healthy company culture in which everyone understands how his or her work fits into the whole. Poor collaboration will lead to resentment, wasted time, and sloppiness.
If you’re looking to recruit people who work well on teams, here are five steps you can take.
Ask Around in Your Industry
Instead of sitting around and waiting for the right person to apply, begin your recruitment process as soon as you know you need a new teammate. By asking people you know and trust in your industry, you may find opportunities that aren’t public knowledge. Who knows which rockstar employee is considering a move to a new position but hasn’t quite updated his or her LinkedIn? Don’t be afraid to have conversations, plant seeds, and do some digging. Ask those around you if they know anyone they loved working with or anyone in particular who really stands out to them as a team player. Networking is an essential part of the recruitment process, and people who work well on teams tend to have larger networks. It can save you a lot of time and help you find the employee who brings the skill set and attitude you’re looking for. You want to have your finger on the pulse of your industry instead of just hoping for the right candidate to fill out an online application.
Utilize LinkedIn
LinkedIn is a convenient tool for job recruitment, but one often overlooked feature of the site is where people can add comments about former coworkers. Look through your candidate’s endorsements. Are there a lot of former coworkers talking about the things this person brought to the team? Do they mention his or her abilities to work well in a collaborative manner? If someone seems like more of a solo flyer—if the person doesn’t have many connections or recommendations—it may be something to ask about. Don’t let it become the be-all and end-all, however; some people simply don’t keep their LinkedIn profile up to date.
Invite the Team into the Interview Process
According to Forbes, “The best teams and smartest leaders all tend to have some reflection of collaborative hiring.” Hiring collaboratively ensures the person you’re bringing into the role has the approval of more than just you, and by giving the person’s new teammates some agency over the process, you’ll help facilitate a smoother transition and get things started off on the right foot. If you’ve found a person you think would be a great fit for your team, don’t interview the candidate solo. Instead, invite members of the team he or she will be on to help with the interview process. That way, you can see how people click and how personalities mesh well before you actually hire anyone. If things feel off, it’s much better to know that in the interview process than on day 1. The person’s new coworkers don’t need to be involved in every step of the process, though; in fact, they don’t even need decision-making power. But being able to observe the way the candidate interacts with the people he or she will be working alongside can make a substantial difference.
Try to Identify Problem-Solvers
One of the most important aspects of being a good teammate? Being able to solve problems. This is obviously a valuable asset for a number of reasons, but being able to think on their feet and deliver solutions will endear candidates to their new team. When conducting an interview, try to ask questions that give candidates an opportunity to demonstrate their problem-solving skills. Giving them concrete examples of issues they may face on a team, asking what they would do if they were faced with problems the team has faced in the past, or presenting them with something your company has been struggling with can help you see whether candidates bring that “problem-solver” mentality you’re looking for.
Talk to Former Coworkers
When you’re speaking with a candidate’s references, make sure to intentionally ask about his or her ability to work well on a team. You can ask how often the candidate had to work on a team, what the person’s supervisor thinks teammates might say about him or her, and what kinds of problems his or her team had to solve together. Also, remember that references don’t just have to be supervisors—you can learn a lot by speaking with someone who worked on the same level as your candidate or even someone who was under him or her on the hierarchical ladder.
Data theft by departing employees is not a new trend. Although insider threat is less reported than data breaches carried out by external threat actors, a quick look at news headlines shows that it is very much real—and a growing problem. According to ObserveIT, since 2018, the number of cybersecurity incidents caused by insiders has grown by almost 50%.
However, companies today have to deal with more than just the possibility of unhappy former employees’ leaking confidential company data. With existing and pending privacy legislation that gives employees rights to access their own data after departure, organizations must now take a host of new risks into account when collecting and processing what may constitute employee “personal data.”
Employees Today Have a Lot More Rights to Access the Data Collected About Them
Even though in most states there are already preexisting laws that require employers to share certain information, like payroll records, with workers, the General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), and the California Privacy Rights Act (CPRA), as well as similar legislation pending in other states, will take this mandatory disclosure of information a step further.
Under the GDPR, for example, employees residing in the European Union have the right to ask their employer for access to their personal data, which must be granted within 30 days. Personal data can include employment contracts, job interviews, performance reviews, CCTV footage, and potentially even e-mails that refer to the employees in question. For companies, deleting any personal information to avoid disclosure after an individual makes his or her request could even result in criminal sanctions.
Similarly, under the CCPA and its extension, the CPRA, from January 1, 2023, employees will have the right to access their “employment-related information,” as well as request for it to be deleted or opt out of it being shared with third parties. Under the CCPA, “employment-related information” means all employee personal data, including information about them logging on to computers, swiping security badges, and being captured by security cameras. The CCPA also stipulates that employers have the duty to tell employees the kind of information they are collecting about them, and employees can sue their employer for data breaches. In the event that a data breach affects employees, any organization that is found to have failed to maintain “reasonable security procedures” could be liable for up to $750 per employee per incident.
Employment Information May Be a Goldmine for Disgruntled Workers
Although tighter protection of employee data is not necessarily a negative development, data privacy legislation also creates new risks for organizations from disgruntled employees.
For one, employee data privacy legislation could make wrongful termination claims more complex. Because more employees may soon have the legal right to access data collected about them during employment, they can potentially use it as evidence against their employer in the context of discrimination, whistleblowing claims, or employment status litigation.
Data privacy legislation also creates the possibility that disgruntled employees could conduct a DDoS-esque attack on their employer's HR department. Given the short turnaround time companies have to provide access to personal files and the need to redact other employees’ information when responding to access requests, a group of unhappy ex-employees could potentially decide to file multiple requests simultaneously, consuming resources and disrupting operations.
Privacy legislation also opens up the potential for employees to take former employers to court over data misuse—an increasingly common occurrence in areas where legislation is in place. Taking advantage of this possibility, disgruntled employees may also choose to file internal and external complaints against their workplace as a result of improper collection or processing of their or their company’s consumers’ information. Even when these claims are baseless, allegations of data misuse can still cause collateral damage to an organization's reputation and stretch corporate resources.
Amount of Data Collected Is Increasing
Complicating matters further is that, regardless of whether employees work remotely or on-site, workforce surveillance is growing. Today, companies are collecting much more information about their workers than they did in the past, but only 56% of organizations have a formal policy describing their employee monitoring practices—something employees are not happy about.
Crucially, though they may soon be required to do so by law, many organizations may not be prepared to make their data collection processes transparent to workers.
Practical Steps to Mitigate Risk of Data Misuse After Employee Departure
Most companies already have processes for off-boarding workers that are designed to mitigate the potential for data theft and/or posttermination litigation issues. For example, more than a third of workers are currently bound by nondisclosure agreements (NDAs). However, NDA provisions may be made void by some of the requirements of new privacy laws, which may give employees the right of ownership/access to data about them even after being terminated.
In this respect, the only real way for organizations to reduce the risk of data misuse following employee departure is to review their employee data collection procedures. Employers need to make sure that how they collect and use data is appropriate and not in breach of current and pending data privacy laws.
Legislation Will Not Stand Still
Even for organizations that are currently not affected by data privacy legislation, it's vital to understand that privacy legislation is a fast-moving space and may soon be in place for consumers within most of the world’s largest markets.
Looking at how the GDPR continues to evolve, it is also evident that any similar legislation elsewhere will continue to change, too. With this in mind, when collecting employee personal information, employers should be aware that employees could, in the future, have the right to access it and potentially use it against them.
Creating a Culture of Transparency and Privacy Is Vital
When it comes to data use, as in any other part of strong employer-employee relationships, transparency is key. Being clear and open about what employee information is collected and what employers may use it for can go a long way in alleviating workers' concerns and reducing the likelihood of problems later down the line.
However, with more and more employees voicing their concerns about data privacy, organizations that want to future-proof their business should consider going the extra mile by building a “culture of privacy.” In addition to the steps above, companies should also educate staff on the importance of data privacy in general, going so far as to give them tips on how to keep their online identities safe and offering online data removal tools. For both employers and employees, data privacy should be seen as a benefit, not a burden.
The list of employers and government agencies requiring employees to be vaccinated against COVID-19 is growing, and such requirements are generally legal under federal law. But employers need to be clear about when exceptions must be made and how state laws can add a wrinkle to their vaccination policies.
Major employers across the country have begun announcing that they will require most employees to be vaccinated. Just a few of those employers are Google, Facebook, Disney, and Walmart corporate employees. Although the Walmart requirement doesn’t apply to store employees, the company has said it plans to begin a process of verifying employees’ vaccine status.
A number of states and cities as well as the federal government also have announced measures requiring government and healthcare workers to be vaccinated. For example, New York is requiring vaccination for patient-facing healthcare workers at state-run hospitals. New York state government employees will either need to be vaccinated or face weekly COVID-19 testing.
California also has announced vaccine verification and testing requirements for state and healthcare workers, and cities including Los Angeles, San Francisco, Long Beach and San Diego County have announced vaccine requirements.
Some state governments are taking the opposite stand. For example, in Montana, Arkansas, and South Carolina (just to name a few), laws or executive orders place limits on employers that want to require vaccinations.
Policies OK Under EEOC Guidance
Employer policies requiring vaccinations aren’t surprising, according to Paul Sweeney, an attorney with Coughlin & Gerhart, LLP in Binghamton, New York, since the Equal Employment Opportunity Commission (EEOC) “has no objection to an employer’s mandatory vaccine policy provided that employers allow for exemptions for those employees who have a medical condition or sincerely held religious belief precluding vaccination.”
Sweeney says “there is certainly a compelling rational basis for requiring hospital workers to get vaccinated,” but most private-sector employers “have and will continue to only encourage vaccinations.”
Sweeney says most New York employers have been asking for proof of vaccination for a few weeks so they can allow employees to work on-site without masking or social distancing.
“The big change will be that many employers may now follow the lead of the state and local governments and require proof of a negative test to work on-site for all nonvaccinated employees,” Sweeney says. “All of this is in addition to new masking protocols, which may require that fully vaccinated employees wear masks indoors in certain high-risk areas.”
Legal Issues to Keep in Mind
Employers adopting mandatory vaccination policies must understand their obligations under the Americans with Disabilities Act (ADA), which requires exceptions to be made for employees who have a medical reason for not getting vaccinated, and Title VII of the Civil Rights Act of 1964, which requires exceptions for employees with sincerely held religious beliefs or practices that prohibit getting the vaccine.
Sweeney reminds employers that they can legally ask employees if they have been vaccinated and collect such proof, but they may not ask the reason why a worker isn’t vaccinated, since that question may elicit protected information on one’s disability in violation of the ADA or genetic information in violation of the Genetic Information Nondiscrimination Act (GINA).
“Also, as with incentives, employers should not have a testing protocol which is so onerous as to be deemed unduly coercive and which forces a person to get vaccinated against their will,” Sweeney says.
In addition to being aware of issues related to requiring vaccinations, employers also must consider the legal issues associated with not requiring employees to be vaccinated.
Workers’ compensation laws are likely to prohibit many claims against employers filed by infected employees who are not vaccinated, but it is possible that others, such as a customer, may sue the business if its employee infects the individual, Sweeney says.
Advice to Employers
As the pandemic continues and new variants of the virus emerge, employers are urged to keep up with developments and new guidance.
“Stay tuned, especially as ‘the science’ surrounding COVID and its variants keeps changing,” Sweeney says. “Instead of just encouraging vaccinations, employers should consider implementing either a COVID testing program or require proof of a negative test to work on-site for those employees who are not vaccinated.”
If justified, Sweeney advises employers to consider making vaccination a condition of employment, like having a driver’s license is required for certain jobs.
“In addition, employers should ensure that all unvaccinated employees are masked and observe social distancing from others while working on-site,” Sweeney says. “Finally, employers should track whether vaccinated employees are to be masked per recent CDC guidance for high-risk areas. Consult with employment counsel on how to craft an enforceable and defensible vaccination and testing policy.”
“As many local governments are deferring to employers to require vaccines, employers have to evaluate their own vaccine mandate in the context of their specific workplace and workforce,” Vreeland says.
Questions Vreeland says employers should consider: “How significant are the risks of transmission between customers and coworkers? How responsible is the workforce about complying with masking requirements and other precautionary measures? What’s the prevalence in the local community?”
Would you share information with your competitors? Would you discuss strategies with them? The concept can be so alien that a great source of mutual enrichment is often lost. I am not, of course, talking about corporate espionage. I am talking about HR professionals getting together with their peers within their industry to solve problems and even shape that industry. Today’s guest believes in the power of this kind of cooperation, and he’s happy to share. Meet Erik Sossa, President at E.A. Sossa Consulting and strategic advisor to Castlight Health.
How did you find yourself in an HR role?
Great question. I think, like most other HR folks I know, it was really a series of serendipitous twists and turns. I don't know anyone who grows up saying, “I want to be an HR professional.”
But after a short stint as a high school math teacher, I ended up in consulting. I ended up working in consulting for about 10 years doing benefit strategy, benefits design, and actuarial consulting. It was great, honest, technical work.
But as I got more exposure to clients, I felt like the work I did, while it was important, was really narrow. It had meaning but not as much meaning to the clients I worked with. They didn't provide benefits and pensions as their business. They sold products or services. I always felt some disconnect.
Candidly, as I was going through that epiphany of myself, I got recruited by one of my clients that I had been doing work for 5 years – PepsiCo. A lot of people transition from consulting to the corporate side.
The part about that opportunity that really drew me is that the company was very successful but also had a reputation of knowing how to develop leaders and professionals. Even to this day, their employees tend to be wanted by other companies. The model there, which was really tricky for me, was one that really looked at very planful experiences in your development and growth. You didn't go there to be a finance person. You didn't go there to be an accountant. If you wanted to be a leader, you went there, and you had a loose plan; you need a corporate role, you need a field role, you need a strategy role, you need an operations role, you need a U.S. role, or you need an international role. I really grew to love that. I did all sorts of things. I did exec comp, global mobility, operations, and talent management in all the areas.
The piece I didn't really appreciate until I went like halfway through that is that richness of context. It was exciting to understand how a company can use HR, not just as "OK, these are people who put products on trucks and bring them to stores" but also as how your HR can really be a competitive advantage. That was a wonderful experience and a wonderful opportunity.
After 24 years in various corporate roles, I really gravitated back down to benefits. Specifically, health care became my area and my personal mission. As I got more exposed outside and became part of the Business Group on Health board and the chair of the ERISA Industry Committee, I really developed my mission. There are issues here. American healthcare is wonderfully advanced. My son had complex brain surgery and it was very, very successful, thank God. Yet, we're still struggling to get e-prescribing. There's such a paradox in the healthcare system. So that became my mission.
I got to the point where, after a long career, I felt it was time to move on and rebalance my work life and do mission-related work. I became an advisor and stayed connected to D.C., and I still do some work in D.C. on policy and regulatory components. Then there were a handful of companies that I really chose to want to work as an advisor for—companies that I believe have the vision, the capability, and the desire to work on that mission.
I think every company has really, really good benefits offerings, but the gap is the connections; it's the engagement. How do you connect the right people with the right programs at the right time? Working with Castlight from its days of a transparency vendor to where it is today as a healthcare navigator and an advocate, it fits in those crosshairs. The leadership team—I have a ton of respect for their vision. That's kind of how I ended up particularly working with Castlight.
It's an interesting journey to have started in the world with benefits and to have seen it as this narrow thing and then to have explored so much else about HR and then come back to it. It doesn't sound like a coincidence to me. It must have been very different when you came back to it to realize sort of the scope and the impact it can really have when done correctly.
I agree. It was very much part of my DNA.
It was interesting to hear you talk about how some companies have such an advanced understanding of how to advance careers, especially to have been doing it 25 years ago. There are still Fortune 500 companies out there and endless smaller organizations that just don't understand how critical successful employee development is to the success of an organization.
Absolutely. That was a very conscious realization. There were a handful of companies back then that really thought of leadership development and that sort of customized process. Some did it a little bit more prescriptively — "You will do this for 6 months, and you'll do this...." My experience was that the company would help you identify the various experiences needed to develop — "OK, you need a corporate experience. Is that what you want to do?" It was a little bit more self-directed, but support and guidance was definitely provided. It is absolutely one of the reasons I went to that company. To this day, when you look at a lot of other companies around and some of their leaders, the folks from that organization are everywhere.
Let’s talk about leadership development. There's an infinite number of books written on leadership development. We get pitches for it all the time. It's almost like part of the life cycle of professionals that at some point, they have to write a leadership book and then do a tour. But one thing I find to be lacking is specifically HR leadership development. HR’s relationship with being leaders has always been challenging. While many have finally earned a seat at the table, many have not. What are your thoughts on the development of HR into leadership and where we need to go?
I completely agree. I even think within companies, it's still rare. HR in the vast majority of companies is still looked at as having the primary responsibility of managing people costs—your people costs or your cost of goods or your cost of X. So all it’s about is how you get the most out of it and go through it. It's hard to look ahead without mentioning COVID. The narrative around COVID changed everything. That's absolutely true. But my observation is that within HR and benefits, COVID really brought to light and highlighted things that some of the HR leaders had already been trying to address – but they couldn't get the seat at the table, the audience, and the time.
We were talking about behavioral health before this became an issue with burnout. We were talking about wellness. We've been talking about workplace flexibility. We've been talking about employees as caregivers and all of these aspects. I think, for the most part, when you're sitting in front of CEOs, most of them would nod and say, "Yeah, yeah, I get it. But what's my medical trend next year? What direction are premiums going in? What changes are you going to make that are going to disrupt my employees?" That was the focus of most of those discussions. I think COVID sort of suddenly changed it to, "For us to be surviving through this, I need my employees healthy. I need them safe. I need them protected and all that."
One thing I counsel the employers that I speak with on is: "Don't take your foot off the pedal, and don't lose that because it'll become very easy to revert back to medical trends and those types of things." You've got your seat, the audience, and some metrics you may have developed, but you need to keep them going. You need to keep reminding them that your human capital management strategy isn't about managing people costs. It's about making your people have that competitive advantage. Every tragedy usually has something you can carry forward as a learning. It's one that I hope we continue, that endures. I hope we don't lose and revert back to old ways.
A lot of quality research had been showing that things like behavioral health and caring about your employees are critical toward the success of organizations and really toward their bottom line. It was ignored for so long, and it took the pandemic for it to happen. One of the things that's upsetting about that for me is that the cost on the people, the toll that was taken on the employees, would have been heavily mitigated if they had listened before. It's so human to wait for the train to explode before you realize, oh, maybe we should look at how the tracks are made.
I did in my work both in benefits and in compensation, and people have asked me what the difference between the two are. A benefits person and that part of HR require a lot more self-discipline in developing a strategy. To your point, by the time you realize you have a problem, it's almost impossible to fix. You've got to always be looking out. The compensation side of the house—"All right, my merit budget's down"—is much more reactionary.
I think the challenge is that we're driven by that fiscal, quarter-to-quarter calendar. It's much easier. "I've got to make two points EPS this quarter. Yeah, the return on investment (ROI) on wellness is like 5 years from now." Candidly, I'm going to be in another role by then.
I think that's the challenge. You need senior leadership to really impose some of that longer-term accountability in some decision-making. If you're measured on quarter by quarter, that's where you're going to make your decisions.
I personally believe the single most damaging thing to organizations has been quarterly earnings reports. It's just not enough time to even begin to see trends. If they were annual, you'd maybe get there because at least when you're looking at the data, there'll be sort of a nod toward where it's going.
I remember reading an article about a privately owned company. I think it was a software company; the CEO was talking about that. He had almost the exact same quote. He goes, and I’m paraphrasing, "I don't know how you manage quarter to quarter. Those can't be real because there's a lot of accounting you can do to make your quarter to quarter look good and not really recognize the underlying trend that's really important to go through." You're seeing that with companies now.
Very true. Let's root it back into what HR can do to maintain this refreshing outlook that leaders have about looking after our employees: truly understanding the costs, in every sense of the word, that are associated with not doing things well. How does HR keep them focused on this?
I would push back on one of the terms you used right now. You mentioned "the cost." The other thing I counsel on is to really look and develop some broader sets of metrics that are beyond cost. And yes, cost is absolutely important; everyone cares about cost. But metrics that really point more to where the value add is—it's reducing a turnover or trying to measure productivity against, "Well, this sounds intuitively logical. It sounds like it should be easy to do. It's really hard to do!" But you can sort of continue to develop those metrics. I love work that is starting to happen. There are a lot of folks on NPS scores and recruitment.
I know a lot of companies have issues with female representation at senior levels. They're all proactively hiring and trying to develop, but they’re not understanding where people dropped out. I know a company that did a study on this topic. A lot of women are dropping out of the workforce, which is no surprise, right after maternity leave. It didn't have the right programs to support the return to work. That was an area where we pointed to as a benefits solution to a business problem. I think you've got to have that mindset. That could lead to adding an on-site day care. On-site day care is a hard one to do an ROI on if you just look at it.
But if you put it in that broader context of what you're trying to do as the business or what your mission is, that's where I advise companies to get out of that "I need to manage my cost control. I need to manage the trend." That's important, but that's table stakes. How do you start to develop metrics that start to add value and really point to those components? That's what we need to continue to do. I've done ROI studies, and we talked a lot about ROI studies, that turn out brand reputation and in recruitment. I think those are important metrics to try to keep top of mind.
This is maybe a little bit of a tangent, but in my heart of hearts, I thought a lot of CEOs in the pandemic sincerely tried and really did the right thing. I saw a lot of folks add premium pay. They spent money on broad testing capabilities in-house. They invested on emotional well-being series and communications and all of those things that I feel like we've been talking about for 20 years.
How do you think HR professionals can support one another? And I don’t mean just within an organization.
In my experience, there are a lot of HR folks who are too inside-out-focused, either because of the nature of their business or because businesses are getting pushed on constraints, saying, "Well, conferences in communities are just boondoggles." I learned the most from my colleagues at other companies, whether they're formal organizations like the Business Group on Health or the ERISA Industry Committee or The Conference Board. There were a number of organizations that were completely put together by employers, like The Global Benefits Forum; there's no real organization, but the 30 largest multinationals would get together twice a year, and we'd talk through issues, though not to collude. We wouldn't be colluding.
Of course.
Our goal was to understand issues. I think you've got to really have that outside-in and inside-out focus. I don't mean to be disparaging of the consulting community. I was a consultant. But by the time the consultant's giving you advice, it's typically very polished and established. Therefore, it's not leading edge. Or, the consultants today are being consultants and also have partnerships and are selling products. I think you may be getting advice that may not be as pure.
But my number one, most trusted source of information and innovation was my colleagues at other employers. You don't have to travel; even locally, we would sit with the three large companies headquartered within a couple of miles away. Let's take 3 hours and just benchmark. I think that's critical. It's a small community. We do tend to move around from company to company. I'm not an example of that, but there are lots of our folks who move through. I think those organizations more than anything afford you the community you need, and I think you've got to get involved. That's where you're going to get your best intelligence and the naked truth—folks who will understand your frustrations within your organization.
I agree. There's someone out there who solved your problem, and that person has given it all the thought. You can't go to your competitors to talk about product assistance, but you can go to your competitors to talk about HR.
Absolutely. We're always very, very careful about how we approach the discussions. I had some really good friends at competitor companies. We always were very careful. We're like, "We're not going to share this record or that information, but we can push the industry in this way. What we want from our healthcare providers is not just good for our company. It’s typically going to be good for all of us." I think that's really critical in this space because I don't think any one company, has real sway to move this industry. Even if you have 150,000 employees, you're not going to have enough voice to sway the industry. You need people in your boat with you. I think that's critical. So it's learning, but if you truly want to effect change, you need to have people on your side.
Editor's note: Kerry was recently a guest on HR Works 5-Minute Friday. You can listen to that here.
In my latest “Faces of HR” interview, I discussed how HR professionals can improve their influence within their organizations and within their career with Kerry Unflat, Chief People Officer at Zipari. In this interview, I was also joined by my colleague Bianca Herron, Social Media Community Manager here at BLR® Media. She will one day soon be taking over this column, so let’s all give her a welcome.
Jim Davis: How did you find yourself in HR?
Kerry: I wasn't supposed to be here. I had started out trying to be in finance and business operations, and every mentor I had in my early years told me not to go into HR. Yet, there was always some sort of HR component to my job. For my finance roles and responsibilities, I was able to communicate to people who didn't understand or appreciate numbers or finance. HR kept pulling me back because of the communication piece and because of my superpower: the ability to see strengths in every single person and understand how to leverage them.
After ignoring all of my mentors for many years, I kept having both finance and HR responsibilities in my roles, along with business operations. Finally, I jumped ship 100%, stopped fighting it, and said, "No, this is a calling." This is very important to businesses because if your people don't work, your teams don't work and your business doesn’t work. I threw myself into it full tilt. I am an absolute nerd when it comes to my profession, I adore what I do, and I love it every single day, even the tough ones.
Bianca Herron: I've got a question. You mentioned your superpower and your ability to see people's strengths and leverage them. It's one thing to actually realize you have this superpower, but then it's also another to tap into it and leverage it. Like you said, you developed it, and you obviously used it for good; you didn't use people's strengths for evil. I would love to know: What was that game-changing moment for you?
Kerry: The game-changing moment was when I received an assignment. It was bizarre because I had strong leadership skills. Somebody put me in charge of a very high-visibility, high-profile project having to do with security. I am an English major. I had zero experience in security at the time, and people were curious as to why you would put an HR and finance person over something like this. I went to the first meeting with a riot helmet on as a joke to break the ice because everyone was really nervous about what was about to happen. I inherited this new team, and I knew absolutely nothing about what they did. What I did was approach it like a lifelong learner, and I asked them, and I learned, I studied, and I got to know them as individuals. Then, I put them in the right roles through which their strengths could shine and leveraged feedback.
I helped them know when they were meeting objectives and then when they were missing the mark. But I did it in a way that always helped them feel that they were still being their best selves in a supportive and protective way. The project was wildly successful, and that was a watershed moment when I thought, "You know what? I could probably handle anything if I just continue to use these skills." I don't have to do it all. I don't have to be a subject matter expert in this, but I have to approach it as a learner. I have to understand what talents people are bringing to the table and how we could leverage them for the better good. Once that happened, I leaned into it, and I said, "I'm going to really understand how to do this at an expert level," and that has really been my life's work.
Bianca Herron: That's amazing. It sounds like a book to me. I feel like that mentality, that mantra, that mindset, and those skills can just be translated across the board, even into someone's home for parents, just to help people be better.
Kerry: I do it at home, much to the chagrin of my family. They’ll ask if I'm pulling an HR move again, which is also, by the way, how my daughter is this talented at 13—but we'll stick a pin in that one.
Jim Davis: I think it’s very interesting how HR has changed over the last 20 years and how quickly it is changing right now. Back when it was called personnel, it was filing paperwork and I-9s and issuing termination letters. Yet, it always had that potential to be what it is for so many HR professionals: a true business partner who guides organizations along a very basic understanding. That is, sure, you could stuff a bunch of people into the rigid confines of your business, or you could build your business around the people. And that second way seems to have been proven, time and time again, to be the better way.
Kerry: Yeah. What I find really interesting is when I go into a new organization, I sometimes spend the better part of the beginning of my career there focused on how you influence the people around you and how you help them understand why people are important and why they have meaningful impacts on the business in terms of organizational development. I’ve noticed that over the span of my career, I used to spend a great deal of time convincing people. I have to do that less now, but I also know that I actively search for opportunities in which people espouse the same people values that I do.
Jim Davis: Organizations that get that get better HR people by having those goals, and then better HR people develop the organization better. We were talking about this in the other segment; you see it as sort of a division when serious situations arise, like the pandemic, when those organizations that are just better at people did better. It doesn't really matter what you're selling; what matters is that, if your people are excited to be there and are engaged and feeling heard, then they're innovating and they're going to make it work.
Kerry: They do. And they work harder for you. There are all sorts of studies and metrics you can take off the shelf to convince somebody why it's important for those people who need to see and touch data in order to believe that something's real. But you're absolutely right. The people who have really solid cultures and healthy places inspire innovation; they inspire growth and productivity. You get the best out of people. You're getting more than you would if you didn't have that infrastructure set in place.
Jim Davis: Absolutely. I was a little excited to talk to you because you had worked in a field that I haven't interviewed anyone from. You worked 9 years for a police department. I'm always curious to talk to HR people who work in challenging environments. Are you comfortable talking about that a little bit?
Kerry: I am. My time with the Harvard University Police Department was a fantastic time. When people ask me about the experience, I tell them it was very different in that I worked for the police department and also the general counsel's office. It was like Kerry's version of Law and Order. When I talk to them about the difference in those two groups I supported, I would say that shift change was at 7:00 a.m. I would be late coming in for a meeting because I would be hugging people before they went into the squad room for roll call. It really was a family-like community where everyone was kind and effusive and sometimes irreverent but in the best ways. Then, I would go into a law office where everyone wore suits, nodded to each other in the hallways, and was very professional and focused and purposeful in his or her language. It was an amazing experience with an amazing group, and I still miss them very much to this day.
Jim Davis: What do you think were your takeaways from that role?
Kerry: One of the things I never thought I'd be able to do is understand the difference between real felonies and misdemeanors because when we would do exams or interviews for promotions, we would test people on those things. I mean, I learned a lot. I think above everything, my big takeaway from working at the police department is that when you're in a new role, you really do have to understand the community you're going into, who the players are, and what their unique needs and challenges are from a people perspective. I had never been in a situation with chain of command before. I learned all about training imperatives and why they’re so important and personality types. I think my takeaway is that humble inquiry will always be important no matter where you go.
If you are in a police department, in an attorney's office, or in this major software company, going in, asking the right questions and making sure you collect data from all levels will be super important to your success.
Jim Davis: What'd you call it? Humble inquiry?
Kerry: Yes. That's where my organizational development nerd shines. Edgar Schein is the father of humble inquiry. It is the fine art of asking questions with an air of curiosity to draw out data from somebody else in mutual learning. Basically, humble inquiry is what you're doing right now because you're asking me these wonderful, open-ended questions, and you're seeking to learn. And I'm seeking to learn from you in a way that just helps us be better people at the end of the day.
Jim Davis: It did sound a little familiar as you were describing it. You don't want to pigeonhole people. I think when I first started doing interviews, there were specific answers I wanted, which was stupid. When you try and get the answer you want, it tends to blows up in your face one way or another.
Kerry: Yeah. One of the more impactful books I've ever read, which was introduced to me at Harvard, is Change Your Questions, Change Your Life, by Marilee Adams. She talks about humble inquiry in a practical and tactical way and about how asking really quality, open-ended questions can transform you not only as a professional but also personally because you ask questions of other people, but there's also this internal monologue wherein you're constantly asking questions of yourself. It’s definitely a book I highly recommend for anybody who wants to look into that further.
Jim Davis: I'll look into that myself. One of the things that makes it so difficult to interview people is that there are 1,000 different directions you can take it, and it's very easy to run down the wrong avenue—maybe not wrong, but by the end of the interview, you don't want to be sitting there thinking "Did I leave some really quality stuff untapped" because ultimately, you have very limited time. And so, that's why I'm going to ask you this question: What's some untapped quality stuff you want to talk about?
Kerry: Oh, gosh. My passion areas are coaching and feedback mechanisms. When you're going in as an HR leader in any organization, regardless of what your function is, I really do think that feedback skills bidirectional are foundational for success in any organization and the ability to coach. Like I was just geeking out with you a little about there, I think the cornerstone to coaching is really how you ask questions and how you pull or draw out information from somebody else to help formulate your plans.
I spend a lot of focus with other HR practitioners on how to build their influence skills. I think a lot of HR practitioners get bad reps for not being strategic or not being influential. I think there are real practical things we can do to expand our influence and start to be a little more confident in that respect. I enjoy doing a lot of work in that community with other HR folks to help them see the value in building and expanding upon that influence and thinking of different strategies they can use to create change or implement change across their organizations.
Jim Davis: I'd love to hear more about those influence strategies.
Kerry: I’ll try not to get too academic here. The cornerstone is that we need to build time in our busy schedules to understand what our influence plan is. We always evangelize to the people we're responsible for to build smart goals, but sometimes, we don't do that for ourselves. As you start to achieve as an HR leader, one of the things you have to pay attention to is your influence skills. The first thing I ask people to do is audit where they are, and begin with the end in mind.
Number one—I call them awesome audits—write down what your strengths are. We began this conversation with you asking me: What are my superpowers? What are my strengths? A lot of people don't know how to answer that. When you're building and expanding your influence, you need to understand where your strengths are so you can help others and influence them and understand the laws of reciprocity and in that respect. So do an awesome audit; understand how you are uniquely awesome and what skills and abilities you have that maybe your other colleagues do not.
Then find out what's important to you. What are your main goals, your initiatives, your strategies? What are you looking to accomplish in the next year? You take both of those things, and then you start to build a cohesive plan for how you can begin to influence. You want to look at your stakeholders. Who are the people you'll need to influence? You audit your existing network. Do you have only friends at the C-suite level or the individual contributor level?
Do you have a diverse network? Are you only friends with HR people, or do you have technologists and strategists and marketing folks? Are there any gaps? Where should you be focusing? You take all of that information, and then you build your smart plan, you define what your objective is, and then you define activities in support of that.
For example, one of the things that might be critical to my ongoing success is my thought leadership in HR. I commit to myself that I will spend, let's say, 20 minutes a week on social media posting things, commenting on things, or amplifying other people's content. That's a smart goal. I know what I'm doing, where I'm doing it, and how I'm doing it. Another thing could be, I'm going to tend to my network, and I'm going to set up three coffee dates a month to reach out and ask people how they're doing. What you do is boil it down to that granular of a detail, and then you execute on it and make time for yourself.
Jim Davis: Very succinct and well said. Have you given talks on that?
Kerry: Yeah. At my last company, HealthcareSource, our products were all talent management products for HR professionals, which was a unique and wonderful role to be in. I would talk to a lot of our client base in the HR world about how to do that. So, I do have a talk on that.
Jim Davis: HR development's always one of those things that's just so interesting to me. I've interviewed hundreds of HR people. They're all so different, and the role changes so drastically from organization to organization. It's so easy to forget, especially because, with our organization, these people also have careers. They're not just servicing the employees, and they're not just servicing their employers; they're also professionals who are trying to move up and move on and advance and develop. There's very little out there that focuses on that. That's part of the reason I do this column—to focus on HR professionals themselves.
Kerry: Well, the old saying "The cobbler's children have no shoes" happens a lot in HR. We are the caretakers. We are the people who are organizing and planning other people's professional development. Sometimes, we give and we give and we give, but we don't pause to think about how we are growing professionally. As leaders—for your VPs and your chiefs out there, too—oftentimes, we're working under constrained resources, and we're always doing more with less, so a lot of times, we forget that starts at home. If we're not developing and taking care of our teams, we can't really evangelize how other leaders can do it, as well. It's an important thing to remember.
Until relatively recently, companies that focused meaningfully on their employees’ mental health were few and far between. Employees who struggled with depression, anxiety, substance abuse, or other mental health issues were largely expected to manage those issues outside of work or face the possibility of being seen as not “cut out” for the job.
As attitudes toward mental health have changed in recent years and the stigmatization of such issues has receded, many companies are looking more carefully at their employees’ mental health, recognizing the role they can play in helping them deal with those issues. They recognize that mental health has a direct impact on workers’ performance, productivity, and longevity.
The Impact of COVID-19
In addition to the gradual shift toward a more compassionate view of employee mental health, the recent COVID-19 pandemic has also served as a catalyst to bring greater attention to employee mental health. Uncertainty over job security, the direct health impacts of the pandemic on employees and their loved ones, and the isolation caused by remote work have made mental health an extremely relevant focus for organizations around the country and the globe.
“I can’t stress enough how important mental health is in the workplace, and I think my business is a prime example of how to do it right,” says Nelson Sherwin, manager of PEO Companies. “We have a big team, which means a lot of resources need to go toward ensuring every employee feels emotionally supported and engaged in the remote workplace. As a manager and as someone who works directly with our HR department on a daily basis, I am so proud that we’ve been able to establish employee support groups and maximize our communication efforts with employees who may be struggling.”
Sherwin acknowledges that the pandemic has led to uncertainty about what the future of the workplace will look like but that his company plans to continue remote work for the foreseeable future. “For this reason, I have begun to take time out of my day to organize Zoom calls with my team in order to ensure that everyone is happy and healthy,” he says. “And if someone needs additional support, we’ve got the resources to help them get through it.”
Having Open Discussions While Maintaining Privacy
One of the biggest challenges with addressing mental health in any organization is the fact that mental health issues have been stigmatized for years. Having open discussions about mental health challenges can help address this stigmatization, but companies also need to ensure they’re respecting their employees’ privacy.
“Ensure that your HR and management team knows how to keep mental health information private, while also communicating and encouraging their team to be open with them regarding mental health concerns,” says Rebecca Cafiero, an international Forbes Business Strategist, a TEDx Speaker, and an author. “Above all, make sure that your team feels cared for, understood and positive about their place in the organization,” she advises.
Modeling Desirable Behaviors and Attitudes at the Top
As with any aspect of company culture, organizations will have greater success with encouraging beneficial mental health practices if leadership is behind the effort. “If the leaders don't embrace mental health practices, it will be more difficult to integrate with the team,” says Cafiero. “It all starts at the top, so it's crucial the organizational leaders are demonstrating the directives, not just signing off on them.”
Geri-Lynn Utter, PsyD, medical science liaison at Orexo, echoes this point. “I always encourage employers to go beyond the basics,” she says. “For example, while webinars about mental health can be helpful and informative, they can also be impersonal. Really try and dig in and aim to promote a culture that encourages the expression of feelings of all kinds–stress, worry, joy, exhaustion–starting from the top down.”
For example, Utter suggests, encourage leaders to make their one-on-ones “less transactional and more meaningful by having them pause to ask about how the other person is feeling.” Ensure they’re ready to listen, act, and provide support as needed.
“People leaders should also be ready to lead by example by prioritizing their own mental health,” Utter adds. “Strive to be open about how you’re feeling and create a space where people can feel comfortable to do the same. Leaders should make a point to schedule time off–and really take it. Aim to avoid sending late-night or weekend emails unless needed. This can help employees of all levels to strike that healthy balance between work and life.”
Share Information
A significant contributor to anxiety in the workplace is a lack of information. With many companies being negatively impacted by the pandemic and some having to lay off workers, it’s understandable that employees would be apprehensive about what the future might hold.
It might seem counterintuitive at first to argue that being transparent and open with employees about potential negative changes in the company’s future would help reduce anxiety. But fear of the unknown is often more difficult to deal with than knowledge of potential challenges. Having such knowledge provides a greater sense of control and agency, and people often assume the worst when they don’t have all the facts. Companies should strive to be as transparent as possible with their teams and provide the support they may need to cope with bad news.
Mental health issues have long been stigmatized both in society as a whole and in the workplace in particular. Many employers have historically viewed employees struggling with mental health as simply not cut out for the job, while others have sought to avoid these issues entirely.
But mental health challenges are far more common than once believed, and employers have an incentive to ensure their employees are mentally healthy and getting the resources they need to remain productive members of the team. Moreover, diagnosed mental health conditions are protected under the Americans with Disabilities Act (ADA), meaning employers have a legal obligation to provide reasonable accommodations.
The past several months have been challenging for many. What steps are you taking to help your employees manage their mental health?
A new proposed rule from the U.S. Department of Labor (DOL) pushes a $15-an-hour minimum wage for certain federal contractors deeper into the pipeline.
The Notice of Proposed Rulemaking, which was announced July 21, establishes standards and procedures to implement and enforce Executive Order (EO) 14026. That EO, which President Joe Biden signed on April 27, means contractors soon will see a significant increase in what they will be legally required to pay. The current contractor minimum wage is $10.95 an hour.
“It is a big jump for the first year from $10.95 to $15 and will increase based on inflation each year after that,” says Nita Beecher, an attorney with the FortneyScott law firm in Washington, D.C.
What should federal contractors expect beyond the increased minimum wage? “The biggest effect will be that with the tight labor market, it will encourage employees to take federal contractor jobs over those with employers who are not paying $15 per hour,” Beecher says.
Beecher, who writes a monthly “Federal Contractor Corner” column for Federal Employment Law Insider, notes the proposed rule has a short comment period of 30 days, so comments must be received by August 23, 2021.
Pressure For Wage Increase
Richard L. Rainey, an attorney with Womble Bond Dickinson (US) LLP in Charlotte, North Carolina, urges contractors to pay attention to the effective dates. Starting January 30, 2022, the order requires agencies that issue contracts to incorporate the new minimum wage in all new contract solicitations, and by March 30, 2022, they will need to implement the new minimum wage into new contracts. Beginning in 2023, the minimum wage will be adjusted for inflation.
Contractors’ current contracts aren’t affected, but future contracts or extensions of current contracts will be.
The proposed rule “is consistent with the trend that we have seen on new minimum wage levels at the state and local level,” Rainey says. “As more and more jurisdictions move to a $15 per hour minimum, there will be more and more pressure on companies with employees throughout the country to move to that level. Also, it will serve as an encouragement to other local and state entities to move in that direction.”
Martin J. Regimbal, an attorney with The Kullman Firm in Columbus, Mississippi, says the impact of the new minimum wage will vary depending on the nature of the contract and the geographic area, since some federal contracts already satisfy or are close to the $15 requirement based on those factors.
Whether the January 2022 effective date is workable for employers will vary depending on when an existing contract is up for renewal and/or how far in advance a federal contractor budgets for work and/or how much time it needs to reevaluate budgets to account for the increase, Regimbal says.
Also, contractors that pay employees working in connection with contracts requiring the $15 minimum may feel pressure to pay their other employees not working on contracts the same rate, Regimbal says. “In turn, it is conceivable that employers without federal contracts will start to feel the same pressure to increase their hourly pay rates in order to attract and retain employees,” he says.
Contents of Proposed Rule
The EO the proposed rule is set to implement will:
Increase the minimum wage for workers performing work on or in connection with covered federal contracts to $15 per hour beginning January 30, 2022;
Continue to index the federal contract minimum wage in future years to an inflation measure;
Eliminate the tipped minimum wage for federal contract workers by 2024;
Ensure a $15 minimum wage for workers with disabilities performing work on or in connection with covered contracts; and
Restore minimum wage protections to outfitters and guides operating on federal lands.
A recent decision from the U.S. District Court for the Western District of Michigan illustrates how important it is to treat similarly situated employees similarly.
Burroughs Corp. terminated Robert Earle Bownes (an African-American employee) from its facility in Kalamazoo, Michigan, after he tested positive for marijuana. Under the applicable collective bargaining agreement (CBA), it could either terminate him or require him, as a condition of continued employment, to undergo treatment for substance abuse. If he refused to complete the program or had a second positive drug test, he would be discharged.
After Bownes’ positive drug test, Burroughs didn’t offer him the chance to participate in a treatment program and fired him. He filed a lawsuit in federal court blaming his termination on race discrimination.
Bownes’ Claim
Where did Burroughs go wrong? Bownes was aware of the drug-free workplace rule and violated it by testing positive. Termination may have been the proportionate response because the employer claims it had a zero-tolerance policy.
Termination may not have been the fairest and most consistent outcome, however, if similarly situated employees were treated differently. Bownes claims Burroughs allowed similarly situated white employees who failed a drug test to go to treatment and continue working.
While Burroughs asked the court to dismiss the lawsuit, the court denied the request because Bownes pointed to six white employees who failed their drug tests and weren’t terminated. The court found the fact to be sufficient to allow the case to move forward. Bownes v. Burroughs Corp, Docket No. 1:20-cv-000964; 2021 BL 178669.
Bottom Line
When evaluating employee discipline or termination, you must consider a number of factors:
Did the employee have notice of the policy or rule he allegedly violated?
Is there evidence or enough documentation to show he violated the policy or rule?
What level of discipline is appropriate for the offense?
When answering the third question, you should ensure the discipline is proportionate to the violation (e.g., it probably doesn’t make sense to terminate a 20-year employee with a good record for being tardy one day).
You also should confirm the discipline is being given fairly and consistently. In other words, you must treat similarly situated employees in a similar manner. Although employees don’t have to have identical records to be similarly situated, they should be similar “in all relevant respects.” Generally, at a minimum, they should: