A Strategic Role for Human Resources in 2015 and Beyond


conference clipartBack in August 2012, I wrote that Human Resources can only claim to be a strategic partner if it brings a specialized expertise to the table with the heads of other divisions. Three years later, that point is still true.

Moreover, today it is even more critical to emphasize that Human Resources needs to change along with the changing workplace. It seems that every year, employees need to work faster and handle more information to succeed. Human Resources must increase its pace and capability commensurately.

Here are some questions to ask your Human Resources Department:

1. How should our business measure employee productivity? Can our employees achieve the standards of productivity needed to increase our bottom line? If not, what should we do about it?

2. How are we selecting candidates for the future? Do we even know what skills we will need in five years? What are we doing to make our workplace attractive to these people?

3. What are we doing to develop and retain our current employees? Can they be successful in the future? If not, how are we preparing to replace them?

4. What are you (Human Resources) doing to minimize the risk of expensive legal claims while not placing an inordinate administrative burden on the company? In other words, how do you make the business case for the policies and practices you want to impose?

5. Where should the company focus its investment—on technology or on people? Why? (The correct answer is probably on both, so how do we balance these investments?)

These are essential questions for every leadership group to answer. The answers will not come from HR alone. But HR should drive the discussion and decision-making process. If your Vice-President of HR is not, then maybe you need another head of HR.

Leaders, what other questions for HR would you add to this list?

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Recent NLRB Activity: Another Agency Running Amok


I have always believed elections were important mostly because the winners get to pick judges and the heads of regulatory agencies. The courts and the bureaucrats rule our day-to-day lives much more than our elected officials, but the elected officials choose who will set the rules by which we live.

And sometimes courts and agencies run amok.

In the last year, we have seen agency regulations promulgated by the Obama Administration overturned because they were overreaching—the Environmental Protection Agency over its failure to consider the cost implications of regulations under the Clean Air Act (see Michigan v. Environmental Protection Agency (U.S., June 29, 2015)), and the Department of Homeland Security over its attempt to issue regulations to limit deportation of many illegal immigrants without public comment (see Texas v. United States, (S.D. Tex., Feb. 16, 2015)) are two examples.

The Obama Administration has also used the National Labor Relations Board (NLRB) to set a progressive agenda. Issue by issue, the NLRB has pushed labor policy to the left. The NLRB has changed several past precedents through both regulations and agency adjudications. Although Congress can overrule the agency with new legislation, President Obama is likely to veto any changes this Congress passes. Therefore, these changes are likely to survive at least until 2017—and beyond, if another Democrat is elected President.

Here are some major recent revisions to NLRB policy:

1.  Quickie Elections

On April 14, 2015, the NLRB’s new regulations on union representation elections became effective. The so-called “quickie election” rules permit the electronic filing of election petitions and other documents, mandatory postings (including electronic postings in many cases) by employers, disclosure of employee names to the union (including electronic lists of employees), and fewer automatic stays on representational issues.

These rules will force employers to be much more proactive during union organizing campaigns and elections. Most employers already jumped into crisis mode at the sign of an organizing campaign. Now they will feel even more pressure to respond quickly.

2.  Confidentiality in Employee Investigations

Since its 2012 decision in Piedmont Gardens, 359 NLRB No. 46 (2012), the NLRB has pushed to require employers to disclose employee witness statements when a union requests them. Piedmont Gardens reversed a 1978 precedent, Anheuser-Busch, Inc., 237 NLRB 982 (1978), which unanimously held that such statements were exempt from disclosure. Although the Supreme Court’s decision in NLRB v. Noel Canning (2014)  invalidated Piedmont Gardens (along with hundreds of other cases), the NLRB continues to demand disclosure of employee witness statements.

In a new ruling in Piedmont Gardens, 362 NLRB No. 139 (June 26, 2015), a divided NLRB held that it would balance the union’s need for the witness statement against “any legitimate and substantial confidentiality interests established by the employer.” This test is subjective and difficult to meet. The NLRB will weigh the employer’s interest against the union’s purported need for the information. Even then, the employer will still have to seek an accommodation with the union, such as a confidentiality agreement.

Needless to say, this will not be easy. The issue of disclosure is likely to result in litigation in many cases, because the employer and union will not be able to agree on the terms of confidentiality.

3.  Temporary Employees:

The NLRB currently does not include temporary employees in a bargaining unit without consent. This long-established rule was changed briefly during the Clinton Administration, then changed back. Now, however, the NLRB seems to want to reverse this precedent again in the case of Miller & Anderson, Inc. (05-RC-079249, July 6, 2015).

4.  Social Media Rules:

Since April 2013, the NLRB has held that social media activity can constitute protected and concerted activity. In Bettie Page Clothing, 20-CA-035511, the Board found that three employees were unlawfully terminated for criticizing their manager on Facebook. The case is now on appeal to the U.S. Court of Appeals for the District of Columbia, and the Obama Administration is vigorously defending the NLRB’s position. See Bettie Page Clothing v. NLRB, briefs available on the NLRB website.

If the NLRB position in the Bettie Page Clothing case is upheld, then employers can expect the Board to let employees say about anything they want on social media sites.

* * * * *

In summary, employers can expect continued aggressiveness from the NLRB as long as the Democratic majority on the Board continues. It will take a new President to appoint members to the NLRB that are less pro-employee than the current Democratic members.

What is your view of the current NLRB position on these issues?

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Favorite Firing: State Trooper Fired For Losing His Hat


NC Highway PatrolSo many of my Favorite Firing stories seem to deal with law enforcement personnel. Perhaps they encounter strange situations on their jobs, so are more likely to get fired for odd reasons. In this case, a North Carolina highway patrolman was discharged for lying about how he lost his hat.

The Facts: Thomas Wetherington was a state trooper with the North Carolina Department of Highway Patrol (the Department). On a windy spring day in 2009, he lost his hat during a traffic stop. He didn’t want to be reprimanded for failing to wear his hat, so he told his supervisor his hat blew off of his head and he could not find it. He later stated he had placed the hat on his patrol car’s light bar, and it must have blown off there. Trooper Wetherington repeated these explanations, or variations of them, for several weeks.

But his explanations were not true. Their falsity was discovered when a person in the car he had stopped returned his hat to the Department in good condition. When confronted, Trooper Wetherington admitted he hadn’t told the truth. At that point, he said he simply hadn’t known how he lost his hat.

He was fired for violating the Department’s Truthfulness policy. The Department’s policy stated:

“Members shall be truthful and complete in all written and oral communications, -15- reports, and testimony. No member shall willfully report any inaccurate, false, improper, or misleading information.”

It took until December 2012 for Trooper Wetherington to get a court ruling on this matter. The Wake County Superior Court in North Carolina found that Trooper Wetherington’s statements were willful and were “unacceptable personal conduct” under the Department’s administrative code. Nevertheless, the court held that Trooper Wetherington should not have been fired. The court found that the trooper’s “untruth” lay only in the hat’s location when he misplaced it.

The Department argued that its officers’ truthfulness in all things is mandatory, because in the future, Trooper Wetherington’s lack of truthfulness in this instance must be disclosed in any criminal case in which he is involved. The court disagreed with that position.

The Superior Court ruled in Trooper Wetherington’s favor, finding that his conduct “did not rise to the level to constitute just cause for dismissal as a matter of law” and the Department’s decision to fire him was arbitrary and capricious.

The Department appealed, but in December 2013, the North Carolina Court of Appeals agreed with the lower court. The parties are currently waiting for a decision from the North Carolina Supreme Court.

The Moral: Tell the truth. In every employment situation, both employees and employer representatives should tell the truth. The truth would avoid many (if not most) of the employment claims that get brought.

Beyond that, however, there are two big issues I see raised by this case. The first is whether any lie by an employee should be grounds for termination, or if there are some lies that are so minor that they should no discipline or only minor consequences.

The problem is that once an employer starts to draw lines, it is difficult to justify where the line is drawn. Employers are taken to task by governmental agencies and courts for inconsistencies in many, many cases. Why should the court hold itself as more able to draw these lines than the Department that employed Trooper Wetherington?

One of my favorite quotes in an employment case is from Elrod v. Sears, Roebuck and Co.939 F.2d 1466, 1470 (11th Cir.1991), in which the Eleventh Circuit said that courts

“do not sit as a super-personnel department that reexamines an entity’s business decisions . . . Rather, our inquiry is limited to whether the employer gave an honest explanation of its behavior.”

So let’s let the real personnel departments make these difficult calls.

In this situation, CBS News reported that

“Wetherington’s firing came at a time when several troopers had faced misconduct accusations, in particular those of a sexual nature. In 2010, then-Gov. Beverly Perdue said she would make every state trooper sign a code of conduct and those that break the rules would be fired.”

Perhaps the Department had good reason in 2009 to hold its officers to a very high standard of conduct.

The other issue I see in this case is that we are now in the middle of 2015, still discussing a relatively minor case that arose over six years ago in the spring of 2009. This certainly isn’t a record in terms of employment litigation. I once handled an employment claim that took over ten years to wend its way through the EEOC to a “no cause” determination, then went into litigation, and was finally settled before there was even a trial setting. There has got to be a better way to resolve employment disputes than to let them fester so long.

What do you think the North Carolina Supreme Court should do in this case?

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How To Recognize and Avoid Toxic Mentors


MP900302921A regular reader suggested recently that I write about toxic mentoring. I’ve been interested in mentoring programs for over twenty years now. Throughout my career I’ve had good mentors and not so good mentors (meaning they weren’t really mentors at all, but thought they were). But I’m not sure I’ve ever had a “toxic” mentor, so I had to give this topic some thought before writing.

What Is a Toxic Mentor?

In my view, a toxic mentor is one who makes you feel worse about yourself and your career, rather than better. It isn’t just that this person doesn’t help you, it’s that he or she actively makes things worse. Confusing or bad advice. More interested in themselves than in you. More like a parent than a coach—they control rather than teach.

Here are a couple of articles with good descriptions of toxic mentors:

What Is a Good Mentor?

MP900341467You may not be able to recognize toxicity in mentoring relationships in advance, just like you can’t always recognize it in a friendship or romantic relationship. So it is best to tiptoe into finding a mentor. And get recommendations from other people of who has helped them.

I think the best thing to look for in a mentoring relationship is mutuality—mutual respect, mutual honesty, mutual desire to get something out of the relationship. If you don’t have this type of reciprocity, you cannot build a good relationship.

My favorite article about finding a good mentor was published in Forbes. What I like about it is the emphasis on someone who is self-reflective, curious, and generous. Most articles don’t focus on these traits. But if a mentor does not know himself or herself through self-reflection, he or she is not going to be very good at helping you assess yourself. And curiosity and generosity are two excellent traits to look for in any coach or friend.

Here are some good articles on what to look for in a mentoring relationship.

How Can You Avoid Toxic Mentors?

Maybe the reason I haven’t personally been zapped by a toxic mentor is that I’ve never relied on one person to mentor me in all things. There were senior attorneys who taught me how to practice law. There were older women who’d successfully raised children while working in demanding jobs many years before I did, whether they were more senior to me in the organization or junior. There were women I admired as people who could be effective without aping how male executives operated. I needed them all to develop my career the way I wanted to.

And there were some things for which I had no mentor, just good bosses and trusted colleagues to help me muddle through.

Still, there are a few suggestions I can offer about how to avoid negative mentoring relationships:

1. Enter the relationship slowly. So many times, mentors are assigned, or the mentor’s role in the organization makes the relationship seem necessary, yet the personalities of mentor and protege simply don’t mesh. If your mentor isn’t helping you, then build other relationships that can get you what is missing in the first mentoring relationship.

2. Have goals for both the mentor and the protege. Ideally, the mentor can learn from the protege as well. That way, the relationship is not as needy.

3. Don’t expect one person to “fix” you or your career. In fact, don’t expect a multitude of mentors to be your savior. Recognize that your work and your personality are what will get you ahead. Mentors can only help you avoid the minefields.

What has been the best help or advice you ever received from a mentor?

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Filed under Human Resources, Leadership, Management, toxic mentors, Workplace

Five Tips on Managing Work and Family: Here Is How She Does It


51dDweLYrsL._SX329_BO1,204,203,200_There’s a new book out on working mothers—I Know How She Does It, by Laura Vanderkam. Ms. Vanderkam took a data-based approach to the issue of how women manage both a career and children. She asked women in highly paid professional jobs who also have children to keep hourly records of what they did every day for about three years.

Her book makes the case that the women she studied—all of whom were mothers with children still at home who earned at least $100,000 per year—actually don’t have such rough lives. While they may not “have it all,” they have a lot. They are not stress-free, but they are pretty satisfied with their lives.

Ms. Vanderkam’s website promotes the book as follows:

“I Know How She Does It offers a framework for anyone who wants to thrive at work and life.”

So what is the framework? How do they do it? Primarily by taking control of their lives. Here are the primary take-aways I had on how they do it, and how the rest of us can, too:

1. Flexing Your Time

The women in Ms. Vanderkam’s study flex their own time, even if they don’t have formal approval for doing so. During most weeks, they do something personal during normal working hours. (And, of course, they do some work during off hours as well.)

It isn’t surprising that women in this group had the ability to flex their time. Most people earning more than $100,000/year have a support staff and technological tools that can cover for them when they are gone. They can mask their absences, both by handling email and phone calls when they aren’t in the office and by getting work done outside of normal working hours.

This isn’t new. In fact, back in the early and mid-1980s, I flexed my time when I needed to, handling personal matters during work hours and taking work home every night, so I’d have something productive to do if a child woke up sick in the morning. Maybe I was ahead of the times, but I doubt it. I just did what I needed to do to feel capable both at work and at home.

2. Managing Your Time

Moreover, the women featured in Ms. Vanderkam’s book are good planners. They take time at the end of each day to plan the next day. They take time at the end of the week to plan the next week, so they hit the ground running on Monday. Not surprisingly, time management is critical to getting a lot done. And their time management is accurate—they are honest about how long things will take.

Again, not a surprise. Every really successful manager I know is good at time management, or has a trusted assistant who manages his or her time. I think the issue of taking time to plan is something that is hard for some people, but I have always found that the work goes faster and more smoothly if I do spend time planning.

3. Taking Care of Yourself

In addition, these women take care of themselves—they exercise and get the sleep they need. They also have support—a committed partner (when available) and reliable child care providers.

At salaries of more than $100,000, Ms. Vanderkam’s surveyed group has more than many women do. But for all of us, it is a matter of getting the support we need. The one thing I have agreed with Hillary Clinton on over the years is that it takes a village to raise a child. The more support parents have, the better.

4. Making Choices

The women in Ms. Vanderkam’s book also may not spend their time on conventional activities. If they can’t get home for dinner, they have breakfast with their kids. They make time to play with their kids when they can. They don’t watch much television. At work, they skip as many meetings as they can.

And they don’t do it all. They make choices about what’s important to them and focus on getting those things done. The rest they let their partner do, or they hire someone else to do it—house cleaning, grocery and other shopping, etc. Again, money is a help. But we all do things because we think we’re expected to do them. Instead, we should focus on what is truly important to our specific family.

5. Putting in the Time

The only real surprise for me was that the working mothers in Ms. Vanderkam’s book worked an average of 44 hours/week. I would have guessed it was north of 50. Many executives—women and men alike—do have to work more than 44 hours/week. In all things, to be successful, you have to put in the time.

I think of the years when my children were small as being some of the roughest years in my life. Nevertheless, I was successful in my career, and I was available at home. I put in the time both places. The years were rewarding both financially and emotionally, even if I didn’t get to read many novels and gave up baking cakes.

What tips do you have for managing your work and personal lives?

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Power, Negotiation, and the Affordable Care Act: A Look Toward the Future


I didn’t expect to be writing about the King v. Burwell decision today. I didn’t expect the Supreme Court to publish its decision until today. But we got it last Wednesday.

I’m not surprised by the decision. As I wrote after the oral argument in March,

“My prediction is that we will either have a 6-3 vote to uphold the IRS interpretation, or we will have a 5-4 decision against the government. I think the Chief Justice will want to be in the majority on this case, so he can at least assign the opinion, and quite likely keep it for himself. That way, he can shape the future of the Affordable Care Act, as he did in National Federation of Independent Business v. Sebelius.”

The first of my scenarios came true: Chief Justice Roberts was in the majority and did keep the opinion for himself. He admitted that the ACA “contains more than a few examples of inartful drafting,” but decided that undoing the subsidies in states using the federal exchange would negate Congress’s overall intent. Congress intended to prevent “death spirals” in the insurance market, and prohibiting subsidies would vastly increase the likelihood of such destabilization in the insurance market.

Once again, Chief Justice Roberts kept the Affordable Care Act from collapsing, thus supporting a poorly written statute the Democrats crammed down the nation’s throat in 2010.

So, where do we go from here? As I wrote just a few weeks ago, the ACA needs fixing for a variety of reasons. While I would prefer to see Congress start from scratch with a market-based approach to healthcare—an approach not based on employer subsidies—the likelihood is that we cannot get there from here. And probably should not.

I recently attended a mediation training program that talked about negotiation power. The presenter made several points about power:

  • Power is relative—it depends on the specific parties to the negotiation and their circumstances.
  • Power is not static—it changes as time passes and the parties change.
  • And the exercise of power has both benefits and costs. The benefit, of course, is that the parties that exercise their power are more likely to get what they want. But at the same time, each exercise of power changes the dynamics of the situation and often increases the resistance of the other party, which can make future concessions more difficult.

This is exactly what has happened in the Obamacare debate. Because the act passed solely by exercise of Democratic power, Republicans became entrenched in pursuing its defeat. They had not been a part of the negotiations. They had been steamrolled, and they didn’t—and still don’t—like it. The temptation will be for Republicans to run the steamroller back over the Democrats, if they get the opportunity.

But what we need is a candid, bipartisan review of the problems with Obamacare, starting with

  • The tax on medical devices
  • The panoply of mandated benefits that make little or no sense (e.g., requiring nuns to cover birth control) and increase costs
  • The fiction of charging older people no more than three times what younger people are charged when older citizens need far more healthcare than the young
  • The Cadillac tax on employers that provide strong healthcare plans
  • The definition of “full-time employee” that employers must cover under the law as someone who works 30 hours per week

It has been said that healthcare reform is based on a “three-legged stool” approach of (1) requiring insurers to treat everyone the same regardless of preexisting conditions, (2) mandating that everyone buy insurance, and (3) subsidizing insurance to make it affordable. Even if we keep these legs (and the individual mandate remains highly unpopular), how can we reduce the onerous and costly impacts of the reforms?

  • Fewer mandated benefits.
  • Allowing people to choose only catastrophic plans.
  • Lower subsidies, which would be possible because the plans would be cheaper.
  • Other options include allowing state experimentation and the development of regional healthcare plans.

Even President Obama acknowledges that changes to the ACA are necessary. Some minor changes might get passed in the next two years, but Republicans have until early 2017 to coalesce around a proposal for major reform of our healthcare system. They should make their decisions by reconciling what is in the long-term interest of our nation (in terms of affordability and equity), what is possible to pass after the 2016 elections, and what will be acceptable to the citizenry—which may be three different things.

What parts of the Affordable Care Act do you think most need revising?

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Filed under Law, Leadership, Mediation, Politics

My 200th Post: A Retrospective, a Thank-You, and a Request


post-milestone-200-2xWordPress tells me this is my 200th post. I have been posting regularly (weekly or so) since November 2011. I’ve taken a couple of short breaks, but for the most part, every Monday there has been a new post, and sometimes another later in the week.

I am proud of the blog and how it has developed over the past three and one-half years. To give myself a pat on the back, I’m linking to some of my favorite posts. Please take a few minutes to review them. I hope you enjoy the posts, whether you are reading them again, or for the first time.

Humility and Leadership: Knowing Thyself

Systematic Neglect: Choose Your Priorities and Accept the Consequences

How Managers Can Impact Employee Retention

Making the Tough Calls: It’s What Leaders Do

Change the Organization’s Design To Get Different Results; But Be Careful . . . You Will Get What You Design

Situational Leadership Theory: It’s Just Common Sense

And, as we approach the middle of 2015, I’ll leave you with one more link:

Mid-Year Self-Assessment (It’s Not Just About Performance Objectives)

If you have not started a self-assessment of how your 2015 is going, I hope you will begin one now. As for me, I have certain things I am proud of this year, and certain regrets that projects are behind schedule. At this time, I am formalizing my commitment to weekly posts here.

I appreciate the interest readers have shown in this blog—each and every comment. I want the blog to address the everyday needs of corporate managers and leaders.

So my request is:

What would you like to see more of on this blog? Less of? I will try to accommodate your interests.

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Filed under Leadership, Management, Philosophy, Workplace, Writing