Category Archives: Management

What Is the Future of HR—Business Partnership or Employee Engagement?


HR signI wrote last September about the relevance of HR in changing times. Recently, I’ve seen several articles on TLNT.com that caused me to again reflect on the future of HR.

Let’s start with a story from DisruptHR entitled “It’s Not Complicated. HR Is About the People,” dated June 20, 2018. That story presents a video by Andrea Butcher which argues that HR professionals should not necessarily become business partners, if doing so takes them away from focusing on the people. Focusing on the people drives business results, because people are what drive business results.

Then I read another DisruptHR story called “HR’s Job Should Be to Encourage Conflict,” dated June 13, 2018. In that piece, Amanda Ono says that the best employees want to learn and grow . . . and they will only do their best work if they disrupt the status quo. So HR should help them by encouraging conflict in the workplace that will change things. She proposes that HR

“Train people on what healthy conflict means. Train people on how to engage in healthy dialogue.”

This sounds like another way of emphasizing people in the organization, albeit emphasizing top talent that can influence change and improve results.

In another TLNT article, “You Can’t Build a Talent-Driven Organization Without HR,” May 3, 2018, Michelle M. Smith writes that HR is under increasing scrutiny for ineffective talent strategies and lack of a strong business perspective. The thrust of her article is that it is the responsibility of corporate leadership—not just of HR—to be focused on finding and developing top talent, but HR must support them. This, of course, is the gist of HR being a business partner.

“The CHRO [Chief Human Resources Officer] of a talent-driven organization must be a great business person, not just a great people person.”

So which is it? Should future HR leaders focus on the business or the people?

The truth is, you can’t do one without the other.

My heart is in employee relations and in developing a great place to work. But if I ignore the business needs of the organization, it will not be a great place to work. If I only focus on employee engagement, without engaging them in what the business requires, I will not be serving anyone well.

And so says Susan Gallagher, in “Fast Growth Means You Need to Pay Extra Attention to Culture,” June 19, 2018.  She writes:

“Culture is the most critical part of your talent strategy when guiding your employees through the stages of rapid company growth. Keeping your people connected to your company’s core values is essential before, after, and – importantly – during the growth period, which itself challenges your company’s beliefs and behavior.”

Although her focus is on growth, the importance of culture and employee engagement is true wherever a company is in the business cycle. Moreover, Ms. Gallagher says:

“Culture cannot be dictated from the top; it must be integrated into all levels of your management team and down through the rank and file.”

The title of this post—business partnership or employee engagement—doesn’t capture the complexity of the workplace. The right answer is . . . HR must focus on BOTH. It is HR’s role to help the organization’s leaders articulate the connection between employee engagement and business results.

As Susan Gallagher says:

“Put yourself in the shoes of different groups of employees and how they will be affected. Get granular and look at different constituencies of your workforce. . . . you want your people to be as invested in the change as you are and happy about making it happen.”

Now that sounds like a focus on employee engagement AND business partnership.

Which focus do you emphasize? Business partnership or employee engagement?

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Likely Impact of Masterpiece Cakeshop Decision on Employers


wedding-cake-3346747_640Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (Sup. Ct. June 4, 2018), is about discrimination in public accommodations, not employment discrimination. Moreover, the Supreme Court decided the case on narrow grounds—the Court ruled against the Colorado Civil Rights Commission because the Commission had voiced remarks showing a disdain for religion. The Commission did not act as a neutral decision-maker in the dispute between Jack Phillips, the Christian owner of a bakery, and two gay men who asked Mr. Phillips to make them a wedding cake.

Therefore, it might seem that this case would have little to do with employment cases. However, employers frequently find themselves in the same position as the Colorado Civil Rights Commission—arbitrating disputes between two employees each of whom has a protected status, but whose interests clash. These disputes can relate to race, gender, age, religion, sexual orientation, or any other protected status.

Let’s just stick with religion—the primary issue in the Masterpiece Cakeshop case. I once dealt with an employment discrimination claim in which a woman was fired after she repeatedly answered the phone of her retail employer “In the name of Jesus Christ of Nazareth . . .” Needless to say, the non-Christian customers of this store (as well as many of the Christian customers) were offended to be greeted in this fashion.

At the time, the standard for religious accommodation in employment discrimination cases was whether accommodating the employee’s religious practices resulted in more than a “de minimis” burden on the employer. We successfully argued that offending our customers was more than a “de minimis” burden.

I still think that would be the result today. However, the Masterpiece Cakeshop decision makes it clear that religious practices are to be taken seriously.

In the case I described, we talked to the woman’s pastor, who told us (and her) that her church did not require her to answer the phone “In the name of Jesus Christ of Nazareth.” It’s clear under later precedents, however, that it doesn’t matter what the religious institution says, if the individual holds a sincere belief. Thus, this woman’s firmly held belief that she was called to answer the phone this way gave her protected rights, whether it was part of church doctrine or not.

And if we had belittled her in some way because of her belief or because of how she practiced her religion—as the Supreme Court found that Colorado Civil Rights Commission had belittled the cake baker—we might well have been liable for religious discrimination.

Justice Kennedy said in the majority opinion in Masterpiece Cakeshop,

“The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”

Moreover, the Court focused on how the Colorado Civil Rights Commission treated Mr. Phillips differently than other bakers who refused to make cakes with messages opposing gay marriage—those bakers were allowed to refuse customers with whom they disagreed, while the Commission had required Mr. Phillips to bake a cake supporting an occasion his religious beliefs caused him to oppose.

As Justice Kennedy said,

“these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

This is a tall order, but deference and courtesy on all sides is more likely to lead to a positive outcome than hostility and ridicule.

It is never easy to resolve situations when two protected interests clash. For me, the Masterpiece Cakeshop decision reemphasizes the importance of treating all interests with respect. At the end of the day, employers must choose sides, just as the Colorado Civil Rights Commission had to choose a side in this case. But all sides in the dispute should be heard and treated with courtesy and tolerance.

It would have been easy for my client to ridicule the employee who answered a business phone with an overtly religious message. But it would have been wrong. Just as it was wrong for the Colorado Civil Rights Commission to ridicule Jack Phillips and his beliefs.

When have you had to resolve a situation in which various employees’ protected rights clashed?

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Dealing with Emotions as a Leader


As I’ve described in this blog, I am trained as an attorney and I am an introvert. I have always been focused on facts rather than emotions. As a result, I am not the most sensitive human being on the planet.

While this might have been a strength during most of the years I practiced law, it became a blind spot when I started managing human resources functions, particularly when I managed employee relations, which included quite a bit of employee and manager counseling.

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Image from Forbes

Early in my career, while I was still working as an attorney, I came to the realization that emotions are facts. While emotions are not tangible, they are nevertheless real. I had to incorporate the emotions of my clients, those of the parties and witnesses to lawsuits, and even the emotions of my co-counsel, opposing counsel, and the judges I encountered. If I did not successfully handle the emotional aspects of the case, I would not achieve the best result for my client.

Thus, I found myself babysitting (my word for it) witnesses in a major case, so that they were not overwrought by the time they had to testify. I listened to my clients vent when they felt they were being asked to pay too large a settlement, even when it was the rational thing to do. I maintained an even personality as much as I could with opposing counsel to diffuse their rants. I patiently explained the law to obtuse judges over and over again until they finally read the cases I had presented.

Managing my own emotions and those of others I encountered were not fun aspects of the job, but they were essential.

When I became responsible for employee relations, I realized my instincts on how employees would react to policy changes were not well-developed. If we were to communicate effectively why we needed to make these changes, I needed to find people with better instincts than I had. Fortunately, I had a man working for me who had long experience in the organization and who had excellent people skills. I learned very quickly to listen to him.

In fact, many times in my career I found it essential to let people with better skills than I had do their work. My role was to get out of their way and keep others out of their way as well.

It wasn’t about me. It wasn’t even about them. It was about getting the job done the best way we could. And that was another fact, even when it felt emotional.

A couple weeks ago, I read an article on the ever-excellent TLNT.com, “None of Us Are Rational, So Smart Leadership Means Learning to Deal With Emotions,” by Jacqueline Carter and Rasmus Hougaard, dated May 7, 2018. [Reprinted by permission of Harvard Business Review Press. Excerpted from Rasmus Hougaard and Jacqueline Carter, The Mind of the Leader: How to Lead Yourself, Your People, and Your Organization for Extraordinary Results (2018)]

Mr. Hougaard and Ms. Carter say it far better than I can:

“emotions are neither good nor bad. . . . as leaders, it’s imperative that we understand the role of emotions, so we can connect with our people, not just on strategy and tasks but also on a fundamental human level. It’s only when we create emotional resonance between ourselves and our people that we enable true connectedness. Whether we’re aware of it — and whether we want to accept it or not — true engagement happens when people feel connected on an emotional level.

. . .

“. . . If we can distance ourselves from our emotions, we can observe them more objectively. With training, observing our emotions can be like watching a movie: You’re not the movie, and the movie is not you. In the same way, your emotion is not you, and you’re not the emotion. . . .

“If we face emotions neutrally and without ego, they lose their grip.”

Even as an analytical attorney untrained in human psychology, I understood these points intuitively. Thankfully, I was able to adjust my behavior to manage my emotions and those of people around me. Emotions are facts, and I dealt with them.

When have you had to deal with emotional situations at work that were uncomfortable for you?

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Favorite Firing: When Will a Sympathetic Plaintiff Nevertheless Lose His Case?


club-2492011_640Being a judge is often a difficult role. In one recent case, Sepúlveda-Vargas v. Caribbean Restaurants, LLC (1st Cir. April 30, 2018), the First Circuit Court of Appeals clearly struggled with how the strict language of the Americans with Disabilities Act (ADA) impacted a sympathetic plaintiff. The first paragraph of the Court’s opinion contains the statement:

“No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.”

The Facts: Plaintiff Victor A. Sepúlveda-Vargas was an assistant manager for a Burger King franchise owned by defendant Caribbean Restaurants, LLC, in Puerto Rico. Mr. Sepúlveda-Vargas was attacked at gunpoint one day while making a bank deposit for his employer, and thereafter suffered from post-traumatic stress disorder and major depression.

Plaintiff requested a transfer to a restaurant in an area less subject to crime and also requested a fixed work schedule (rather than the rotating shift required for all assistant managers at Caribbean Restaurants). His managers accommodated plaintiff’s request for a while, but later determined they could not continue to accommodate the requests. Thereafter, Mr. Sepúlveda-Vargas resigned. Thus, this is technically a constructive discharge case, rather than a firing.

The District Court concluded that Mr. Sepúlveda-Vargas was not a qualified individual under the ADA, and therefore did not need to be accommodated. The lower court also concluded that the defendant employer had not retaliated against the plaintiff to create a hostile work environment justifying his resignation. As a result of these findings, the District Court granted defendant’s motion for summary judgment.

Specifically, the District Court found that working rotating shifts was an essential function of the assistant manager job with Caribbean, and, since Mr. Sepúlveda-Vargas could not work rotating shifts, he could not perform the essential functions of the job and was therefore not a qualified individual under the ADA.

The District Court recognized that even if the plaintiff was not a qualified individual under the ADA, the employer was obligated by law not to retaliate against the plaintiff for raising an ADA claim. Then the District Court addressed a long list of alleged retaliatory acts. The District Court stated that these did not rise to the level of actionable behavior by the employer.

A panel of three judges on the First Circuit looked at the alleged retaliatory behavior de novo, but agreed with the lower court’s findings. Thus, Mr. Sepúlveda-Vargas did not state a viable claim against Caribbean Restaurants, and the First Circuit affirmed the District Court’s ruling against Mr. Sepúlveda-Vargas.

The Moral: To be frank, if the District Court or Circuit Court had really wanted to, I think the judges could have ruled in Mr. Sepúlveda-Vargas’s favor, at least on the retaliation claim. Among the allegations made were that Mr. Sepúlveda-Vargas was scolded for requesting an accommodation, that he was forced to drop his pants to prove to his manager that he had a skin condition, and that he was called a “cry-baby” several times by his supervisors, . . .

While the District and Circuit judges in this case explained their rationale for not finding these allegations to amount to an actionable case for retaliation, other judges have found retaliation on facts no worse than those Mr. Sepúlveda-Vargas alleged.

From an employer’s perspective, it is heartening to see both a trial court and an appellate court follow the statutory language of the ADA in finding that an employee has not stated a cause of action. The judges gave the employer great deference in designing the job requirements for its assistant managers. It is also heartening to see the judges parse through allegations of retaliation and conclude that the alleged behavior was insufficient to support a constructive discharge case.

In this case, the First Circuit stated:

“Not all retaliatory actions, however, suffice to meet the ADA’s anti-retaliation provision. Rather, ‘a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ [citations omitted] Indeed, we have explained that ‘[f]or retaliatory action to be material, it must produce “a significant, not trivial harm,”’ [citations omitted], and that ‘actions like “petty slights, minor annoyances, and simple lack of good manners will not [normally] create such deterrence.”‘ [citations omitted]

But these cases often boil down to questions of fact. The decision could go either way, depending on the decision-maker. So this case is a strong reminder that employers should (1) engage in a respectful dialogue with an employee who requests an accommodation and (2) avoid retaliatory behavior after the request for an accommodation is made, whether it is accepted or denied.

When have you seen an employer prevail in a retaliation claim?

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Deconstructing Your Grievance Story


Last week I attended the Heartland Mediators Association’s conference featuring Eileen Barker as the speaker. Ms. Barker spoke about forgiveness. In a single post, I can’t do justice to her day-and-a-half seminar about forgiveness. And she only touched on a part of her twelve-step forgiveness process. So I will focus on one step in the process—deconstructing our grievance stories.

As a mediator, an attorney, and a Human Resources professional, I have heard many, many grievance stories over the years. In the legal context, the grievance story takes the form of someone who feels wronged who wants to punish the person or institution that wronged them—whether it be the other person in a car accident, the owner of the premises where they fell, the manager who fired them, or any other situation causing them pain or grief.

ForgivenessWorkbook coverWe all tell stories to find the meaning in what is happening in our lives. According to Ms. Barker, there are three essential elements in a grievance story:

1. The aggrieved individual interprets an event in a personal way, as something intended to impact him or her in a negative way.

2. The aggrieved individual blames someone else for how he or she feels.

3. The aggrieved individual tells a story in which he or she is the victim, powerless to control the situation.

Note that these are my articulations of the three elements. For more, see Ms. Barker’s Forgiveness Workbook: A Step by Step Guide, available here.

Let’s take a workplace example: I’m thinking of a time when I did not get a job I thought I was well- qualified for. The hiring manager told me that he “would sleep better at night” if he hired the other candidate. I immediately took that statement personally—I interpreted the remark to mean that he believed me unqualified and he would worry about me in the role. I felt mortified to think he thought I was unqualified and shamed that I had even put myself forward for the position. And I blamed him for making me feel that way. Of course, I was the victim—there was nothing I could do to change the situation, because he had the power to decide who to hire.

Deconstructing the story involves changing the three elements of the grievance story:

1. Looking for another way to tell the story so it’s not about the aggrieved individual.

2. Looking for the positive intention in the other person’s action, not blaming them.

3. Turning the story so that the aggrieved individual is the hero, not the victim, to give him or her back the power.

In my example above, I had to re-frame my story to tell myself that the hiring manager was looking for the best person for the job. I had to accept that on paper the other candidate had more experience than I did, even if I believed I was best able to take the job where it needed to go in the future. By retelling the story, I could see the hiring manager’s positive intention—he wanted the best person for the job, even if I disagreed with who that was. And I had to find ways to take back my power. Within a few weeks, I accepted another position that allowed me to grow professionally, even if it wasn’t the position I had first applied for and that I really wanted.

Deconstructing my story took time. I was quickly able to move on from my initial feelings of mortification and shame. But it took a couple of years for me to see the advantages of the situation I’d found myself in and to realize that I grew from the experience and that maybe I was better off than I would have been had I been thrust into the role I’d applied for.

This deconstruction of our stories is part of how we come to forgive. I later reported to this hiring manager and we built a good working relationship. I forgave his unfortunate comment that he “would sleep better at night” if he hired the other candidate (though obviously, I never forgot it).

When have you told yourself a grievance story about a situation in your life? How did you deconstruct it?

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Workforce Planning in 2018: An Ever More Urgent Need


HR signIn the late 1990s, I was a part of my employer’s early efforts at workforce planning. At the time, workforce planning seemed to be a discipline in its infancy.

Our workforce planning was mostly about numbers: How many employees could we afford in various divisions of the company? Would retirements in our aging workforce cause problems in our ability to produce product?

It took a few years for our company’s leaders to move beyond the demographics to consider the skill sets needed in a changing environment. Which skill sets did we have too much of? Which would be required in the next decade, and could we grow those skills internally or would we have to hire to fill our needs?

I argued at the time that workforce planning was the strategic layer behind every Human Resources discipline. I said workforce planning was the practice of defining who the right employees were, when and where they would be needed in the workforce, and all the tools needed to hire and keep those employees—the compensation and benefits and perks, the employee relations and employment branding practices, the training and leadership development, etc. Everything designed to get the right people in the right jobs at the right time was a part of workforce planning.

Unfortunately, some of our corporate managers never could make the shift beyond thinking about workforce planning as headcount. Those managers themselves were part of the skill sets we no longer needed—we would have to seek out more visionary leaders to take their places. It took years and years of arguments to move to a more strategic view of workforce planning.

I was intrigued to read a January 30, 2018, article on SwipeClock.com by Cary Snowden, entitled Defining Your 2018 Workforce Management Strategy. In the twenty or more years that workforce planning has been around, what has changed?

Mr. Snowden starts by defining workforce planning:

“The definition of workforce planning describes a continual business planning process. It’s a long-term, ongoing effort that expands as the organization grows. This isn’t a quick fix, so settle in and prepare for the long haul.”

Clearly, Mr. Snowden sees workforce planning as a strategic component of Human Resources and general corporate management work. He says it is not just a short-term effort, but “also includes forward-looking plans for organization growth, new talent acquisition, and management of outsourced third-party services.”

Change the Organization’s Design to Get Different Results; But Be Careful . . . You Will Get What You DesignBut it appears that the same barriers I faced in the late 1990s are still around. Organizations focus on immediate needs, rather than a long-term look at what workers they will need, even though “Workforce planning is a long-term game that requires patience and finesse,” according to Mr. Snowden. Gathering the data is hard and requires robust information systems and mining capabilities.

But data-collection and -mining systems have come a long way in two decades. My workforce planning efforts were based largely on an Excel spreadsheet. I could capture demographic data from our HRIS system, but despite my desire to move on to skills development, defining the skills of the current workforce and predicting the needs of the future were largely beyond my capabilities. As Mr. Snowden puts it, my company was largely operating on hunches, when good data were needed.

The five-step strategic process that Mr. Snowden outlines is similar to what we tried to do back in the late 1990s:

  1. Establish a strategic direction for your workforce, based on the changing skills needed for the products and services your company plans to offer and the financial models you are using.
  2. Analyze the existing workforce and determine gaps, whether those gaps are in numbers or skills.
  3. Create an action plan to address the gaps.
  4. Implement the plan.
  5. Monitor, analyze, and evaluate . . . which includes circling back as your strategic plan for the organization changes and more changes are needed in your workforce.

Described in these “simple” five steps, the planning process for workforce planning is no different than any other planning process. What makes workforce planning so challenging and unique is the difficulty of having the vision and accuracy to predict what skills your business needs and what you need to do to find, attract, and retain high-caliber people who will achieve your business goals, while at the same time relinquishing the people who can no longer contribute as needed.

According to Alan Mellish, in an article published on March 27, 2018, on HCI.org’s blog, entitled Workforce Planning in a Fast-changing Economy: Common Pitfalls to Avoid, here are some things to watch for:

  • Waiting for all the data (you’ll never have it)
  • Not aligning your workforce planning with your business needs
  • Not prioritizing the roles that will make the most difference for your business going forward
  • Failure to integrate data from inside and outside the company

Today’s trends such as economic growth, trade disputes, changes in labor and other regulations are factors to include in workforce planning. Every business will see different impacts from these trends and from issues specific to your industry and market.

The labor market is tight these days, particularly in highly desired skill sets. Over 6 million job openings are unfilled in the current market. You will have to do a better job at workforce planning than your competitors. Are you ready?

What successes and failures has your business had with workforce planning?

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What Employers Should Expect on Immigration Issues for the Remainder of 2018


USCIS logoOne of the biggest impacts that the Trump Administration has had on the workplace is in the area of immigration. Although the need for foreign workers remains a huge issue for many U.S. employers, particularly those needing skilled technical workers, the Trump Administration has made it more difficult for foreign nationals to obtain the appropriate visas.  Even intracompany transfers are taking longer to process.

The Harris Poll conducted a survey in November and December 2017. Data from that survey indicated:

  • 70% of employers say having a global workforce is very or extremely important to their talent strategy
  • 53% of employers expect to hire more foreign nationals in 2018
  • 85% of employers say the current U.S. immigration system has impacted their hiring and retention strategies
  • 44 percent of employers say U.S. visa applications have become more difficult (up from 35 percent last year)
  • 58 percent of employers say their Requests for Evidence have increased
  • 42% of employers say the biggest change they have noticed over the last year has been increased foreign national anxiety and questions

See here for more from Envoy, a global immigration services provider, regarding the Harris Poll survey.

In today’s low unemployment environment, immigrant workers are one of the few ways employers have to increase their applicant pools—a necessary part of growing their businesses. Nevertheless, given the Trump Administration’s predilections, which begin with the President and his cabinet members, it is likely that employers will continue to struggle in their efforts to hire immigrant labor.

I have spoken with immigration attorneys who confirm that U.S. Citizenship and Immigraton Services have placed increased emphasis on Requests for Evidence, which has significantly slowed down the granting of visas for well-qualified foreign nationals.

Here are some likely immigration actions and decisions in the remainder of the year:

  • By the end of June 2018, the U.S. Supreme Court is likely to issue a decision on the Trump Administration’s travel ban. This decision might clarify some of the limits of the Executive Branch in the area of immigration policy.
  • Congress and the President could strike a deal any time on the Dreamers (undocumented workers brought into the U.S. as children), which is likely to permit Dreamers to remain in the U.S., though with further actions to limit immigration in other areas or to enhance border security.
  • USCIS is likely to continue to scrutinize foreign nationals seeking work authorizations, particularly those seeking H1-B visas.
  • Similarly, there are likely to be more restrictions on visas for family members of foreign nationals already authorized to work in the U.S.
  • 2000px-U.S._Immigration_and_Customs_Enforcement_(ICE)_Logo.svgMore workplace raids by Immigration and Customs Enforcement officers are likely to continue to increase the numbers of workplace raids, leading to more deportations of illegal workers.

For more on these efforts, see here and here.

Given heightened activity in the field of immigration enforcement, employers need to increase their vigilance on complying with immigration laws. Employers also need to be more proactive in seeking the foreign workers they need to be competitive. Here are a few specifics actions that employers should consider:

  • Conduct internal audits of I-9 forms, preferably with the help of outside counsel, so that any problems are properly addressed. A strong audit can provide a “safe harbor” and/or reduce fines if the government later determines that unauthorized workers are in fact employed by the company.
  • Start any visa applications in support of foreign nationals well in advance of the time the company needs the employee to begin working. Leave time to respond to Requests for Evidence, which USCIS is more likely to send than in prior years.
  • Monitor developments on the Administration’s travel ban, Dreamers, and other issues that might impact your workplace. Be prepared to act immediately to comply with any changes.
  • And remember that the U.S. immigration system is based on very detailed regulations, so be sure to use experts with knowledge of the changing immigration bureaucracy.

Increased scrutiny of immigrant visas and documentation impacts not only the ability to hire the types of skilled workers needed in a timely fashion, but also the morale of those already employed. Employers in areas most likely to face workplace raids or I-9 audits should address their employee relations issues as well as the staffing implications of the Administration’s policies.

What immigration issues have you experienced in your workforce recently?

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