Take Our Daughters And Sons To Work® Day: It’s 2014, Do We Still Need It?

Even the Marines participate in TODSTW Day now. Photo from Wikimedia Commons

Even the Marines participate in TODSTW Day now. Photo from Wikimedia Commons

I’ve seen very little written about this year’s Take Our Daughters And Sons To Work® Day. That’s the current designation for the day, morphed from the original appellation “Take Our Daughters To Work Day”.

April 24, 2014, is the 21st occurrence of TODSTW Day. Children born the year the event began are already in the workplace, and within a few years their children will be old enough to participate.


To be sure, TODSTW Day was never one of my favorite occasions. My first experience of the day was as a working mother with grade school children two decades ago. I had to decide whether just my daughter or also her older brother should participate. I had to decide whether the eligible (and interested) child would visit my workplace or my husband’s (he had even less interest in the occasion than I did). I had to find something for the child to do, if he or she was with me.

Later as a manager, I had corporate responsibility for planning for the event. I had to decide what activities in my department were appropriate for children of what ages to attend. This was particularly difficult in a factory environment, but even in an office setting there were confidentiality, management, and sensitivity issues to contend with. On one occasion when my daughter accompanied me to work, we had a discussion about offering same-sex benefits in our company. Should she attend or not? (She did, and she had a well-formed opinion on the topic.)

I also had to deal with resource issues. How many managers would spend time with the children? Should we get t-shirts with corporate logos for employees responsible for the activities?

All in all, what was supposed to be a day promoting discussions about women in the workplace became a day of games and hoopla. And that was a decade or more ago.


Both my children are working now, while I have left my corporate responsibilities behind. As I look at TODSTW Day now, I think it is unnecessary to have a separate day to have children learn about their parents’ work responsibilities. I would hope that now most children are aware that both men and women can work—away from home or at home.

It’s been amusing to see the old Doonesbury cartoon strips republished in recent weeks. In one recent series of strips, character Joanie Caucus is teaching preschool girls that they can work outside the home, when they have been conditioned to only want to be mommies. How antiquated this story line  seems!

In fact, one challenge in today’s society is to preserve respect for women and men who choose to work as caregivers to their children or who strive to craft a balance of work and caregiving from the home.

Another challenge is creating flexibility in the workplace for both women and men who need to spend occasional time with family, but still want to contribute in an office or factory or retail setting. Our wage and hour laws are simply not designed for flexibility, even when it is desired by both employer and employee.

However, there has been a downturn in the percentage of women in the workplace in recent years. I believe the poor economy is mostly to blame. But perhaps some watchfulness is still needed. Maybe we should keep the TODSTW hoopla around for a few more years.

What do you think—should Take Our Daughters and Sons To Work Day continue?



Filed under Human Resources, Workplace, Diversity, Employee Engagement, Management, Work/Life

Mozilla, Brendan Eich, Diversity, and the First Amendment

Brendan Eich, Mozilla Foundation official photograph, from Wikipedia

Brendan Eich, Mozilla Foundation official photograph, from Wikipedia

The separation of Brendan Eich, former CEO of Mozilla, from his position just ten days after he was named to it, is a situation where all involved did what they were legally entitled to do, yet the result causes reasonable people some discomfort.

  1. The CEO made a legal donation, in support of a position with which more than half of California voters agreed at the time.

In 2008, Mr. Eich donated $1,000 to support passage of California Proposition 8, which reserved marriage for a man and a woman. Proposition 8 passed that year, with the support of 52% of California voters. During the 2008 Presidential campaign, both Barack Obama and Hillary Clinton stated they were against gay marriage.

Mr. Eich had every right to contribute to any ballot initiative he wanted to support, as do we all. Nevertheless, he recently resigned from Mozilla under duress, stating, “Under the present circumstances, I cannot be an effective leader.” The circumstances were that his personal donation in support of California Proposition 8 was causing a public backlash against his employer Mozilla.

  1. The protesters did what comes naturally to protesters across America.

When Mr. Eich was named CEO of Mozilla, OKCupid and other organizations in favor of gay marriage “outed” Mr. E in social media for making the $1,000 donation in support of Proposition 8 six years ago. They argued for a boycott of Mozilla for naming Mr. Eich to the CEO role.

The organizations and individuals who spread the campaign to boycott Mr. Eich had every right to publicize what was already public (though not well known) information. It was a fact that Mr. Eich had made the donation. The protesters against his position could discuss it publicly and call for whatever reaction they thought appropriate. Protest is the American way, and we see it acted out every day by both the left and the right.

  1. The company addressed a very real financial and public relations problem.

When Mozilla realized that Mr. Eich’s donation was a distraction from his ability to lead the company and would likely result in lost revenue from customers that did not want to be associated—however remotely—with Mr. Eich’s donation, its board discussed the situation with Mr. E, and he stepped down. It is a board’s fiduciary obligation to mitigate financial problems, and the Mozilla board had to address the situation and determine an appropriate response. In fact, Mr. Eich, as an officer of the company, had a fiduciary duty not to do it harm, which his continued presence was likely to do.

So there is right on all sides in this matter.


And yet, the result in this case makes me queasy. It raises questions that every corporate diversity council, every employee resource or affinity group that supports diversity in the workplace or in society, every Human Resources department in America, and every advocate of political correctness should ask themselves.

Here are my questions:

  1. If contributions to organizations that work against gay marriage can be cause for termination, what other contributions can also be cause for termination? What about contributions to anti-abortion groups? To pro-abortion groups? To tea party affiliated groups? To the Communist party? To fundamentalist churches? To a neo-Nazi group?
  2. If you make distinctions between any of the groups named in Item 1, what is the basis for making those distinctions?
  3. If it is right to make a CEO step down because of a private contribution made for political and religious reasons, what other employees can a company make step down? Other officers? Anyone in a public or leadership role? Any rank and file employee?
  4. What if Mr. Eich’s donation had been made twenty years ago? Forty years ago? Is there any statute of limitations on holding someone accountable for a past political or charitable contribution?
  5. What if Mr. Eich had not given money in support of Proposition 8, but had simply voiced his opinion publicly? Or posted his opinion on Facebook? Or at a private dinner party? Or simply attended a rally in support of Proposition 8?
  6. Where is the role for tolerance of opposing viewpoints in our society?  On what issues is tolerance intolerable in your opinion?
  7. How far would you go to defend the right of someone whose position on an important issue differs from yours to express that opinion? How do you think competing concerns under the First Amendment should be balanced, and whose responsibility is it to ensure that balance is kept?

In this post, I am not advocating for or against gay marriage. I am also not saying Mozilla was right or wrong to force Mr. Eich to depart. I am simply pointing out the complexity of diversity and First Amendment issues.

Mr. Eich’s departure from Mozilla involves a situation where public opinions on an issue of  civil liberty (gay marriage) have been changing rapidly. It is also a situation where a citizen’s freedoms of speech, of religion, and of association are being attacked several years after he exercised those rights.

Regardless of your opinion on gay marriage, and even though all parties involved acted legally, if you do not squirm over the result in this case, I wonder what conflicts between the civil rights of dissenting members of our still pluralistic society would cause you discomfort. After all, the Bill of Rights was designed to protect those with minority opinions.

And yet.

How do you personally answer the questions listed above? How does your organization answer them?


Filed under Diversity, Human Resources, Law, Leadership, Management, Politics

The Difficulty of Hiring For Fit

team-115887_640Even though I managed a staffing department for several years, I have never liked recruiting. There’s too much marketing involved for my taste.

But I do believe in the importance of hiring for organizational fit. A good staffing process assesses the candidate against the job and the organization to make sure there is a fit, and also lets the candidate get a clear picture of the organization, so that the candidate makes an informed decision about accepting the job.

Laurie Glover, Contributing Writer for The Business Journals, posted a good article on April 2, entitled How to structure a search for the “right” employee.   Ms. Glover offers three strategies for hiring the right employee:

  • Look for someone who has the relevant skills and knowledge, not necessarily the most intelligent candidate,
  • Assess the candidate’s motivation, and
  • Select people who fit the culture of your organization.

Unfortunately, all three strategies are difficult to make happen during the “dating” that occurs during most selection processes.

  1. Skills v. Intelligence—Both Are Important

I disagree in part with Ms. Glover on the role of intelligence. She advocates not necessarily hiring the best and the brightest, but looking instead for someone with the skills and knowledge to do the job. Yet she also says that skills and knowledge can be fixed, implicitly diminishing their importance in the hiring process.

I agree with her to the extent that when she says not to hire “the best and the brightest,” she means not to focus on candidates cut from the usual mold—those who come from the best universities and have the same stellar resumes. It is important to have a diversity of perspectives within an organization. Hiring all your employees on the basis of their alma maters or GPAs can easily get you a cookie cutter approach to the job.

However, a wise man I once worked for told me, “The way to tackle a hairy problem is to throw a bunch of your best people at it. They’ll come up with a solution.” On another occasion, this same manager said, “It’s never a risk to hire someone smart.”

I took both pieces of advice to heart, and tried to hire people who were not only intelligent, but also had proven successes in their past. Doing so required that I look for more than “book smarts.” The “best people” have more than intelligence. They have the motivation and cultural savvy that Ms. Glover describes in her other two strategies.

  1. Motivation is Critical

I am in complete agreement with Ms. Glover that the best people are those who are independently motivated. As she states, you cannot motivate employees; they must motivate themselves.

All candidates will profess themselves to be self-motivated. It will probably take serious probing during interviews to find out how self-directed applicants have been in achieving results in their previous roles. Checking references is also important, as is reading between the lines, because prior managers may be reluctant to describe a former employee as unmotivated.

Look for candidates to display enthusiasm about earlier projects and to talk openly about why they liked their prior assignments.

  1. Success Requires Cultural Fit

conflictThe final strategy that Ms. Glover recommends is also critical to hiring a strong candidate.  I love the way Ms. Glover articulates the importance of cultural fit: “Can I stand them while they’re doing the job (and can they stand us)?” We have all worked with someone who had the requisite skills and abilities, but who absolutely rubbed us the wrong way.

Yet cultural fit is difficult to assess during the normal recruiting process. Both candidate and organization are typically on their best behavior. It takes strong interviewing skills to assess the “how” of a candidate’s past performance, as well as the “what” of the results achieved.

Moreover, there are times when it is important to bring in someone with new skills or a new way of thinking into an organization. When that is the case, it is very important to do so carefully. Some candidates will be too much of a shock to the organization, or will be ineffective because they cannot communicate with internal partners and customers. That balance—diversity of thought and perspective on one hand, and cultural fit on the other—is delicate.

Often, it will boil down to “can I stand this person for 40+ hours per week?”

What has been your experience in hiring for fit?


Filed under Diversity, Human Resources, Leadership, Management, Workplace

A Dysfunctional Staff Meeting

Do you know people like these managers? Have you been in dysfunctional staff meetings? If so, you’ll enjoy my novel, Playing the Game.

Read this excerpt from Chapter 2, which takes place the day after CEO Rick Players was injured in a snowmobiling accident:


Maura Ramirez went to work early on Monday. Kevin had said the officers’ staff meeting would go on as scheduled, but she wasn’t sure what to expect. What was there to talk about, other than Rick? She had planned to bring up cutting labor costs. But without Rick, the group couldn’t—or wouldn’t—decide anything. Should she even raise the issue?

When Maura arrived in her office, the voicemail light on her phone blinked. Her email held a screenful of unread messages. Most were from people wanting information about Rick. She responded to as many high-priority calls and messages as she could.

Before she knew it, it was 8:30. Time for the meeting.

Maura grabbed her headcount reduction file, still not sure whether to talk about it, but wanting to be prepared. She headed down the hall to the executive conference room near Rick’s office.

Alex Draper, the Chief Financial Officer, sat in his usual seat at the conference table, files and calculator and laser pointer arranged in front of him. Alex was a good number-cruncher, his analytics as precisely trimmed as his dark curly hair and bristly mustache. But Maura had never seen him smile at any of PlayLand’s products.

Dewayne Jefferson, General Counsel, loomed over Alex with a cup of coffee and a coconut doughnut in his hands. “Lining your pencils up, Alex?” Dewayne said. “Too bad you can’t get profits to line up as neatly.”

Dewayne, a large African American, wore a dark grey suit, blue button-down shirt and red foulard tie—impeccably attired as always. Maura suspected he used his imposing size and intellect to intimidate his adversaries, in the courtroom and at PlayLand.

As Dewayne twitted Alex about his pencils, Grant Mason, the Vice President of Operations, strode into the room. Despite being one of the older officers at PlayLand, Grant radiated energy. Employees told Maura they were afraid of his furrowed eyebrows and stern mouth. Only those who worked closely with Grant knew that, though he was hardheaded, he considered new ideas thoughtfully.

He was one of Maura’s favorites on Rick’s staff. She smiled at Grant as he sat.

Grant shot her a quick grin back, then frowned. “Any word on Rick?”

She shook her head.

Leo Benson sauntered in about eight forty. Leo had spent his entire career—over thirty years—in the Sales group. He hustled customers, but reacted negatively to his peers’ ideas. For Leo, it was Sales against the rest of the world, and Sales was always right.

Leo settled into his seat. A gold chain flashed around his neck and another shone on his wrist. His right hand sported a heavy diamond ring, an award from early in his career for achieving top sales for five years running.

“Where are Vince and Kevin?” Leo asked. “They called this meeting.”

No one answered.

At 8:45, Kevin and Vince walked in together.

“Any word on Rick?” Grant asked as the others murmured the same concern.

Kevin shook his head. “Nothing new.”

The Players brothers all had the same nose and ears, but whenever Maura saw them together, she noticed how different they were. The injured Rick was the oldest and also the broadest, built like the football player he had been in college.

Vince, the tallest, had not kept himself in shape. The green plaid sweater and rumpled corduroy slacks he wore today emphasized his generous stomach. Maura stifled a sigh as she glanced at Vince.

Kevin’s ready grin made him the most attractive, in Maura’s opinion, though he was the least physically imposing. She also found him the most personable, the easiest to get along with.

Kevin motioned Vince toward the head of the table where Rick usually sat.

Vince cleared his throat as he took Rick’s chair, then said, “Thanks, everyone, for your concern about Rick. We really appreciate it. He’s still in a coma. Doctors don’t say when he’ll come out. We’ll let you know if anything changes.” Vince looked toward Kevin, who nodded.

“Let’s go around the room,” Vince continued. “See what’s happening. If you needed anything from Rick this week, we’ll figure out what to do. Where we can, we’ll wait until Rick’s back. Who wants to start?”

Leo stirred his coffee, diamond ring flashing. “Rick and I were supposed to meet with Toy Mart on Thursday,” he said. “I’ll handle it. Just preliminary. To feel them out about our new action figure line. Rick was only going because Toy Mart’s our largest customer.”

“I’ll go,” Kevin said. “They’ll expect special marketing terms. But we have to be sure we don’t overcommit. We can’t afford much this year.”

Leo shrugged. “Suit yourself,” he said. “No need. But if you want to go, I’ve leased a jet. We leave at seven thirty Thursday morning.”

“I’ll be there,” Kevin said.

Alex tapped his pencil on the files in front of him. “Haven’t you seen the financials, Leo? No money for jets.”

“The plan was for Rick and me and a couple of Sales guys to go. Toy Mart’s in a podunk town in Wisconsin. If we fly commercial, we end up spending three days out of the office for a three-hour meeting. Our time’s worth something.”

Alex stood and passed copies of a spreadsheet around the table. “Kevin’s right about not overcommitting. We can’t promise Toy Mart or anyone else anything this year. These projections show the trouble we’re in.”

Alex turned on a projector displaying a PowerPoint slide of the spreadsheet he had distributed. He flashed his laser pointer at the bottom line. “We’re losing money. Cash flow is eroding every week. At this rate, our whole line of credit will be used up by June.”

He showed another slide. “Every division needs to control costs until we negotiate a bigger line. Rick and I have—or had—a meeting scheduled with the banks next week. What do we do about that meeting? How will the banks react if they think Rick is incapacitated?” Alex’s diction was as precise as his sculpted mustache.

“Vince will work with you and the banks until Rick is back,” Kevin said.

Vince looked up from his hands. “Yeah,” he said. “Let’s talk later this week, Alex. You can show me specifics. Even if Rick wakes up today, he can’t travel next week. Not with broken bones.”

“Okay,” Alex said, his head bobbing up and down. He peered around the room above his glasses. “Does everyone understand? We can’t spend any money this year.” He tapped his pencil on the table to emphasize his words.

“Oh, come off it.” Leo waved his hand dismissing Alex, his ring flashing. “How can I sell new product without marketing dollars?”

“We have some ideas to keep the marketing costs down,” Kevin said. “Isn’t that right, Vince?”

“Got my staff brainstorming,” Vince replied. “Both the New Ventures folks and Jennifer Scott in Dolls.”

Leo snickered. “That sweetie’s a doll herself. But what does she know about action figures?”

“Give her a chance,” Kevin said. “She’s pretty sharp.”

“Okay, Alex,” Vince said, “Anything else we need to know from Finance?”

“Keep costs down, and let me know ASAP about budget overruns.” Alex turned off the computer screen and went back to his seat.

“Grant?” Vince asked, turning to the Vice President of Operations.

“So far, we’re on track with production planning. We’ve only seen specifications for the first few action figure SKUs, but we should get the others soon from Product Development. I assume we’re still on schedule?” Grant frowned at Vince.

Vince nodded.

“Everything else is in good shape,” Grant continued. “Costs for raw materials are up, but we’ve switched to some cheaper vendors. I think we’ll hold product costs level with last year.” He scowled. “But labor costs are up. That’s the weak link in our projections.”

That was her cue, Maura decided. She wished Rick were there to back her up. She leaned forward. “Both salary and benefits costs are shooting up. We’ll probably need to reduce staff this year. But as a first step, I recommend we don’t hire anyone unless absolutely necessary.”

“But I have open sales territories,” Leo said. “Turnover in the field is sky-high. I need to fill those jobs.”

“If you have to, you have to,” Maura said. “But if we lay people off later, you’ll have a bigger mess then. Better to hold the territories open.”

Alex tapped his pencil nervously. “Maura’s right. Labor is the fastest growing item in our budget. Why would we hire more employees, given our current projections?”

Grant glared, leaning back in his chair with his arms crossed. “Leo and I have the most people. I hear what you’re saying, Maura, but sometimes we have to fill open jobs.”

Maura shook her head. “I’m not telling you to cripple the business. Just be careful. My staff’s working on a headcount reduction plan. We’ll have it ready soon.” She wouldn’t present the plan now. If they wouldn’t even agree to stop hiring, no way would these guys lay people off. Only Rick could make them do it.

“Can we agree to be careful?” Vince asked. “If it seems like we need to get tougher, we’ll revisit the issue. Maybe when Rick is back.”

Maura watched in disgust as the rest of the group nodded. Vince had cut off the debate without reaching resolution. Leo would do as he damn well pleased. Grant wouldn’t add employees unnecessarily, but he would run Operations the way he thought best. Only she and Alex seemed concerned about the rising labor costs. Typical.

* * *

To read more, go to Amazon or Barnes & Noble.

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Filed under Human Resources, Leadership, Management, Playing the Game, Workplace, Writing

New EEOC Guidelines on Accommodation of Religious Dress and Grooming Practices: A Higher Standard?

"Celtic Cross (#0383)" by regan76

“Celtic Cross (#0383)” by regan76

On March 6, 2014, the EEOC issued new guidelines on what employers must do to accommodate their employees’ religious dress and grooming practices. See EEOC publication titled Religious Garb and Grooming in the Workplace: Rights and Responsibilities.  The agency takes the position that employers must accommodate these religious practices, even when they violate company policies, unless doing so presents an “undue hardship” on the employer’s business.

Specifically, Q&A 6 of the guidelines states:

“Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship.  Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.”

"Turban Day 2012-15" by Anuraj Singh

“Turban Day 2012-02″ by Anuraj Singh

According to the EEOC, employers must accommodate all aspects of religious observance, including not only the well-established religious practices of traditional religions (Christianity, Judaism, Islam, etc.), but also “new, uncommon” practices “not part of a formal church or sect,” and any “sincerely held” beliefs, even where they are not part of a formal church practice and even if the belief seems “illogical or unreasonable to others.” See Q&As 2 and 4.

One tricky issue for employers is the standard of accommodation to which the EEOC will hold employers. Traditionally, the standard for religious accommodation has been that employers need not agree to any accommodation that causes more than a de minimis cost or burden to the employer’s operations. Q&A 6 of the EEOC’s new guidelines pays lip service to retaining this de minimis standard:

“For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the Americans with Disabilities Act (ADA) undue hardship defense to disability accommodation.”

EEOC sealNevertheless, the new EEOC guidelines make it clear that the following cannot be the basis for the employer’s claim of undue hardship:

  • customer preferences (Q&As 5 and 6)
  • co-worker disgruntlement (Q&As 5 and 6)
  • an employer’s desire to use a particular image or marketing strategy (Q&A 10)

If these core business considerations cannot be rationales for objecting to a religious accommodation, then an employer’s operations can in fact be significantly altered by compliance with an employee’s request for an exemption from a dress or grooming policy, contrary to the expressed de minimis standard.

It appears that the only  acceptable “undue hardship” the EEOC will recognize is one which causes and actual impact on safely, security or health. See Q&A 12. And the only example of permissible refusal to accommodate a dress or grooming requirement in Q&A 12 is requiring an employee with a beard to wear two face masks instead of one for hygiene reasons (Example 15). Even prohibiting an employee from wearing a dull knife that is a religious symbol is an illegal denial of religious accommodation (Example 19).

In many instances an employer can acquiesce to an employee’s religiously motivated requests for different dress and grooming standards with little or no hardship, and accommodating these requests is appropriate. Nevertheless, many of the examples given in the EEOC guidelines do not feel like de minimis intrusions into employers’ businesses to me. They feel like they impose a significant risk that the agency will second-guess an employers’ decisions.

And how far should the EEOC’s higher standard of accommodation be allowed to extend? What about religiously motivated speech? The new guidelines do not (yet) speak to anything more than religious dress and grooming accommodations. But there is no rationale that I can see why customer or co-worker objections to dress and grooming accommodations should be prohibited, while objections to words should be allowed.

I was involved in a situation where an employee in a retail operation insisted in answering the phone “In the name of Jesus Christ of Nazareth, this is [XYZ Department Store].” When questioned about this practice, she said that her beliefs required her to always speak in the name of Jesus Christ and to so preface her remarks.

We had many complaints from both Christian and non-Christian customers. After much discussion with the employee and her minister, the retailer ultimately terminated her employment. A court found the termination proper and granted the store summary judgment. But I wonder whether we might have been liable for employment discrimination under these new EEOC new religious accommodation guidelines, no matter how many customers we lost as a result of her statements.

What types of religious accommodation requests have you encountered in the workplace?

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Proposed Changes to Overtime Regulations Don’t Update Wage Laws Sufficiently

Obama SOTUIn his State of the Union speech on January 28, 2014, President Obama promised to use his regulatory authority and executive orders to bypass Congress when they could not reach a deal. He has begun to follow through aggressively on this promise in the labor arena.

This call for new regulations to cut back on the FLSA exemptions from overtime is the subject of this post.

imagesIn general, the FLSA requires overtime pay for workers who work more than 40 hours/week, unless they fit into one of several categories of employees who are “exempt” from FLSA requirements. The largest exempt categories are for executive, administrative, and professional employees.

In his March 13 memorandum, President Obama stated:

. . . regulations regarding exemptions from the Act’s overtime requirement, particularly for executive, administrative, and professional employees (often referred to as “white collar” exemptions) have not kept up with our modern economy. Because these regulations are outdated, millions of Americans lack the protections of overtime and even the right to the minimum wage.

Therefore, I hereby direct you [DOL] to propose revisions to modernize and streamline the existing overtime regulations. In doing so, you shall consider how the regulations could be revised to update existing protections consistent with the intent of the Act; address the changing nature of the workplace; and simplify the regulations to make them easier for both workers and businesses to understand and apply.

Labor experts expect that the Department of Labor will increase the salary threshold for these exempt workers from $455/week to somewhere in the neighborhood of $970/week.

I’m not adverse to an increase in the salary threshold. The current threshold of $455/week has been quite low, equating to $24,000/year, and was last increased ten years ago.

However, I have two concerns about changing the FLSA regulations—the first that it won’t improve workers’ wages as the President said, and the second that it doesn’t get at the heart of the problems with the FLSA.

1.  Businesses will change their hiring practices in response

An increase in the salary threshold of the anticipated magnitude will greatly expand the number of workers eligible to receive overtime pay. But businesses will not stand still in response.

Rather than increase the overtime wages they have to pay, many businesses are likely to change the way they structure jobs. They may pay their supervisory workers overtime and hire fewer non-supervisory workers to offset the overtime paid to the supervisors. They may hire more workers, but work them fewer hours to avoid the extra cost of overtime. They may cut back everyone’s hours to keep labor costs the same. Businesses are not likely to let an increase in overtime pay increase their cost structures increase without any response.

As one commentator stated,

“Employers should begin to consider, however, how increases to the required salary level and revisions to the duties tests under the “white collar” exemptions may impact long-standing staffing and compensation models for a wide range of employees.”

These changes may or may not be good for the economy. But if President Obama thinks more workers will automatically get “the protections of overtime” with an increase in the salary threshold, he is wrong. Some workers may find their pay cut when their hours are reduced.

2.      FLSA is out of date in many respects

My second concern is that we are missing a big opportunity to improve our wage laws overall. The FLSA was adopted in 1938 in response to the Great Depression. The labor market has changed substantially in the last 76 years, and many aspects of the FLSA regulations do not fit today’s labor market.

One issue that many employers and employees alike have requested is additional flexibility on the definition of “work week” and the ability to offer “compensatory time off” in lieu of overtime wages. For example, defining a two week period of 80 hours, rather than a single week of 40 hours, and permitting employees and employers to agree to flexible schedules, or occasional fluctuations, across that longer period of time before overtime is payable.

Moreover, we no longer live in a world where most employers do all their work at the employer’s place of business. Many workers do some work from home, or at least answer work-related calls and emails. Policing overtime work is increasingly difficult, and if the new regulations do not address the problems of monitoring employees’ working hours will set employers up to pay for time they never intended employees to work.

Any regulatory change that only addresses the narrow issue of the salary threshold for white collar exemptions is missing a huge opportunity to update one of our nation’s core labor laws.

Many of the broader changes in the FLSA would require statutory change, and the President cannot address these problems unilaterally. But it would be a big step forward if President Obama worked with Congress to bring the FLSA into the 21st century, offering changes that employers want in addition to increasing overtime and minimum wage levels as Democrats want. Rather than unilateral executive actions, we need a bipartisan approach to updating work rules across the board.

What aspects of the FLSA do you think are out of date?

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Favorite Firing: I Wish We Could Have Fired Her for Resume Fraud

Every so often there are news reports of job applicants who have padded their resumes to get hired or promoted. One of the most notable examples was Scott Thompson, former CEO of Yahoo, who claimed he had a degree in computer science from his college, though the college did not offer such degrees when he attended. When his misrepresentation was discovered, he stepped down from the CEO role.

Here’s another example of resume fraud from my personal experience. Technically, this situation did not give rise to a “firing”, but I wish it had.

from Wikimedia Commons

from Wikimedia Commons

The Facts: In one of the in-house legal jobs I held, we had a candidate for a paralegal position who had maintained a falsehood for years. She was a long-term employee in another department in the company who had told her supervisors that she was attending law school.

When our legal group had an opening for a paralegal to assist with document work in a large lawsuit, the Human Resources department suggested we interview this employee, whom I will call G.M. We interviewed her and she seemed to have the necessary skills, so we transferred her into our department.

In addition to document work, we thought we could use G.M. for some legal research. I asked her if she could handle a project I had. “Oh, yes,” she said.

The next day she fell out of her chair at work and incurred a back injury. The worker’s compensation case went on for months, and ultimately she left the company due to her disability.

In the meantime, however, one of the attorneys in our department was chatting with an acquaintance in the local law school’s admissions office. “We have one of your former students, G.M., working with us now,” she told the law school representative.

“Who? I don’t know G.M.” As an admissions employee for several years, this person should have recognized G.M.’s name.

Upon further investigation, we learned that G.M. had never been enrolled in law school, and had misrepresented herself to her supervisors for all the time she claimed to be in school. She wasn’t using any legal skills in her old department, so why she did this, we’ll never know. But she compounded the problem by maintaining her misrepresentation when we contacted her about our paralegal position.

And we got snookered because we didn’t do a background check before transferring her into our department. And were repaid for our naïveté when she filed the worker’s compensation claim.

The Moral: Check out the critical information in all applicants’ resumes, even if they are transferring within your company, particularly if the new position will require them to use new skills. It might be too late to check out after they are hired.

Once a situation turns litigious, as with an EEO or worker’s compensation claim, it may be too late to address the employee’s resume fraud. We had no basis for disproving that her back injury was caused by a fall out of her chair (though no one saw her fall). Under the relatively lax rules of worker’s compensation cases, the company was liable for her injury, regardless of her resume fraud.

Clearly, we wanted to fire this employee because of her misrepresentation. But the risk of a lawsuit alleging we were retaliating against her for filing the worker’s compensation claim was too great. All we could do was negotiate a settlement in the worker’s compensation case that resulted in her leaving the company.

Have you ever been caught by an applicant’s or employee’s resume fraud?


Filed under Human Resources, Law, Management, Workplace