Tag Archives: human resources

Employer Health Care Benefits — Preparing for 2018


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I last wrote about health care in late March, shortly after the House of Representatives failed to bring the American Health Care Act (AHCA) to a vote. Since then, after a few amendments, the House did pass the AHCA, but with all the other brouhahas in Washington over the last few weeks, it’s questionable whether the Senate will get to health care anytime soon.

There are some good provisions in the AHCA as passed by the House. Among other things, the AHCA makes the following changes to Obamacare:

  • The individual mandate was repealed, as was the employer mandate;
  • The 2.3% medical device tax was repealed;
  • The net investment tax was repealed, as was the .9% Medicare high earner tax;
  • The Cadillac tax for expensive plans was delayed (and will probably never be permitted to take effect, since neither Republicans nor Democrats like this provision); and
  • Health Savings Accounts were expanded, effective in 2018

All of these provisions provide less government control over the health care marketplace. In the long run, these changes would generally be helpful for employers.

Still, as most people recognize, without an individual mandate, some incentive is necessary to get healthy people to opt into health insurance before they get sick and to maintain that coverage. The AHCA continuous health insurance coverage incentive replaces the individual mandate penalty. This incentive operates much like HIPAA certificates of coverage. As long as they do not let their health insurance lapse for more than 63 days, individuals cannot be charged higher premiums because of preexisting conditions. Moreover, the premium penalty for the first plan year cannot exceed 30%.

There is an exception to this 30% limit, but the exception permits insurers to charge late enrollees with pre-existing condition higher premiums only if the state has waived the community rating rule and the state has established a high-risk pool to help people with preexisting conditions fund their coverage.

The AHCA is far from a perfect bill, and it is likely to face substantial amendments in the Senate before it comes to a vote in that chamber. And Congress has many other priorities this session as well. So what will happen with respect to health care legislation by the end of the year is anyone’s guess.

Nevertheless, we are at the time of year when many employers are examining their options for health plans for their employees for the year ahead. What should employers do in this time of uncertainty?

Obamacare, the Affordable Care Act, is still the law, so until Congress acts, employers must comply with the mandates and reporting requirements. With the individual mandate in place, employees will want to know their employer-provided health care options in a timely fashion.

Moreover, although the Cadillac tax has been kicked down the road and its ultimate implementation is uncertain, avoidance of the tax—or preparation for it—will take time to structure.

For 2018 at least, the current employer responsibilities are likely to remain in place. Employers must continue to manage their benefit plans, tweaking them as makes most sense for their workforce. There remain many reasons why employers should support their employees’ health and wellness if they want to be employers of choice.

Employers, what concerns you the most about health benefits in 2018?

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What Does the Trump Administration Mean for Human Resources?


human-1181577_1280The next several months—and likely the next few years—will be a roller coaster for Human Resources professionals. The differences between the Obama Administration and the Trump Administration are stark in many government arenas, but labor and employment is surely one of the areas where the differences are the most dramatic.

Here are some of the most likely changes that HR will have to address with their organization’s management in the short-term:

1. Immigration

Immigration practice is likely to change, with some changes coming quickly and others developing over the course of several months and years. In the short term, E-Verify will be expanded to check all new workers, and I-9 forms are likely to see increased audits. Industries that are dependent on immigrant workers—both high-tech companies needing H1-B visa holders and those like hospitality firms that need manual and service workers—are likely to see a slow-down in their ability to bring in foreign workers. HR will need to have compliance programs in place.

2. Overtime

The Department of Labor changes to the overtime exemption rule will likely be reversed. Business had objected strongly to raising the exempt salary threshold to $913 per week ($47,476 per year), though most organizations had begun—or even completed—their transition to this increased bright line between exempt and nonexempt positions. Currently, the rule is in limbo, as a federal court has enjoined its implementation, but how the court will rule finally is unknown and the timing uncertain. The new Department of Labor could decide to drop its defense and let the injunction become permanent. Or DOL could propose some modifications. HR will need to advise management on whether to retain changes that have already been implemented and communicated, whether to reverse them, whether to take a “wait and see” approach, or some combination of all of these.

3. Health Benefits

The Affordable Care Act (Obamacare) will change. But the scope and direction of the modifications and repair of this complex statute and its even more complex regulatory scheme have not yet been determined. At the moment, HR can’t do anything, but this is an area that will necessitate time and effort, no matter what happens.

4. Union Organizing

Many NLRB rulings are likely to be reversed. The timing of these changes will depend on when President Trump fills the vacant seats on the Board, but as soon as Republican appointees have a majority, it is likely that we will see a significant tilt toward management-favored positions. In the immediate future, some of the pro-union policies favored in the Obama Administration, such as “quickie elections” and the “persuader” rule (requiring attorneys and other consultants to disclose clients whom they advise on union organizing issues), should be axed. The broadening of the joint employer doctrine—which the Obama Administration had pushed—may also be rolled back.

5. Downsizing

Reductions in force in major employers are likely to receive increased public scrutiny. If jobs are moving overseas, employers need to be ready to justify their moves and to respond to possible Presidential attention.

And over the longer term, HR can add the following changes to its project list:

  • The Obamacare changes are a long-term issue. It is unlikely that employers will need to change anything for 2017, and even 2018 is uncertain.
  • State and local legislative developments will become a bigger area of concern. Issues such as minimum wage increases and paid family leave are likely to see more movement at the state and local levels than through Congress.
  • Diversity practices may get murkier. The mandate for affirmative action at federal contractors may be weakened or repealed, though Congress might push back on President Trump on this issue if he goes too far. HR will need to work with organizational leaders in determining the best diversity policies for their workplace.
  • Also on the diversity front, employees with strongly held religious beliefs may seek greater freedom to object to work assignments and/or to display signs of their beliefs in the workplace. With Christians feeling empowered and Muslims feeling threatened, greater religious tensions in some workplaces are possible. HR will have to assist managers in working through these conflicts.
  • Whether President Trump will support broader immigration reform and whether Congress can pass such legislation are unknowns at this time.

The Society for Human Resource Management has set up a page monitoring workforce developments under the new Trump Administration. It is worth following.

I’ll revisit these issues in a few months to see what changes have developed.

HR professionals, which issue do you most hope changes under the Trump Administration?

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Performance Management Isn’t About Deadwood


MP900341467I recently wrote about performance management and the abolition of performance reviews at certain companies. Then I read a Wall Street Journal article last week stating that one of Kimberly-Clark’s goals is “managing out deadwood.” So much for doing away with performance reviews at that company.

The article states that Kimberly-Clark has about a 10% total turnover (voluntary and involuntary), and that employees are expected to “keep improving—or else.” I don’t disagree with a focus on continuous improvement, and a 10% turnover is not excessive. Still, performance management and “managing out deadwood” are two different things in concept, if not always in the end result. And they have different consequences both from a legal and from an employee relations perspective.

From the legal perspective, talking about employees as “deadwood” can lead to complaints of age discrimination. See Herr v. Nestlé U.S.A., 2003 Cal. App. LEXIS 855 (June 12, 2003), described here.

Any indication that an employee over age 40 is past his or her usefulness is problematic. Of course, employees can be ineffective performers at any age, but the tendency at many companies that initiate performance improvement drives is to focus on employees who have been sitting around for awhile—and who tend to be in the protected age group.

From the employee relations perspective, it can be demoralizing to adequate performers to know that managers are snapping at their heels, that as soon as the worst performers are out, a continuous improvement drive will mean employees who are in the lower mid-tier are now at the bottom.

Yet a true continuous improvement program means there is always someone at the bottom. It’s not like one manager told me once, “We’re done—we fired all our poor performers last year.”

Despite my quip above (“so much for doing away with performance reviews . . .”), there actually is no disconnect between abandoning annual reviews and an emphasis on performance improvement. In fact, it may be easier to focus on performance issues with the more regular discussions between managers and employees advocated by such companies as General Electric, Adobe Systems, and others.

Whatever performance culture a company decides to adopt, the important thing is to train managers to handle it well, to avoid the legal pitfalls of only focusing on older low performers or others in certain protected groups, and to keep the emphasis both encouraging and disciplined.

Performance management isn’t about getting rid of deadwood. It’s about improving every employee’s performance—including that of managers.

When in your experience has a performance management emphasis caused legal or employee relations problems?

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The Lonely Role of Human Resources Professionals


HR wordle“I don’t think I can ever join their book club,” an HR acquaintance of mine told me one time about a group of employees in her division who socialized together. “I know too much.”

I was also in Human Resources at the time, and I’d been a corporate attorney before that. I knew exactly what she meant. HR professionals—and employment attorneys also—sometimes learn too much about the people they work with to be comfortable socializing with other employees.

office 2 people Y01VDYAX63HR can be a lonely profession. You know who is on a performance improvement plan. You know whose jobs are about to be eliminated. You probably even know who is having an affair with whom. In all these situations, confidentiality is important. There are few people you can share information with—and typically, the fewer the better.

As social media options expand, the choices that HR professionals must make become even harder. Do you “friend” or “follow” others in your organization, knowing that you might see posts about their off-work activities that could have implications at work? What if they post racist or sexist comments? What if they post a photo of themselves lifting weights at the gym when they have lifting restrictions at work? (Don’t laugh—it’s happened.)

Some HR employees set firm policies for themselves that they will not follow anyone from their company on social media. Some won’t use social media themselves. And yet, our co-workers are often our best friends. By limiting our social media and other communications, we limit our social interactions.

book BCLRC8HNEOI am in a book club with a senior HR manager in the company I used to work for. While we gossip about common acquaintances, she is discreet about what she says. I am no longer privy to confidential information about these individuals, but she still is. I respect and admire her circumspection.

I remember being in her shoes and not having anyone to talk to about particularly thorny situations—such as when a senior corporate employee had been accused of sexual harassment, or a well-respected employee had serious medical issues. Those were difficult and lonely times.

When I was in a senior HR role, I was fortunate to have a couple of fellow HR professionals whom I respected and trusted. Sometimes I felt comfortable using them as sounding boards to talk through difficult cases. I could role play with them or talk through likely responses from the employee in question.

But twice that I can recall I was involved in negotiating a severance agreement with the individuals who managed my trusted peers. I could not bring them into the situation, and therefore had no one to review the situations with. On another occasion, I had to discipline one of my HR peers for violating corporate policy. Again, since the individual was not being fired, I couldn’t talk about the case at all.

The higher up you are in Human Resources, the lonelier it is. The more you know about the organization and its future plans, the more prominent people you work with, the less likely it is that there is anyone to discuss these matters with. In fact, CEOs typically use their chief HR officers as their sounding boards about any and all talent issues in the organization, from performance problems of corporate officers to succession planning to how to integrate or downsize a newly acquired unit. What can the HR VP do when he or she would like a sounding board to discuss the CEO?

The worst thing that can happen for an HR professional is to lose the trust of the people in the organization. As a matter of course, HR employees walk a line between being viewed as management shills and employee coddlers. HR has to keep the long-term good of the organization in mind, and not lean too far toward either management or employees. In fact, HR needs to knock down the walls between management and employees by building a strong employee relations culture.

Still, losing trust is easy to do. Any ethical lapse or revelation of confidential information, and HR loses its effectiveness. So loneliness is part of the job. Good HR professionals learn to live with it.

When have you faced loneliness on your job?

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Matrix Organizations: Advantages and Disadvantages


matrix-organizational-structureI’ve been thinking about matrix organizations recently—about the pros and cons of these complex structures and about my experience in one many years ago.

A matrix organization is one in which there are dual reporting structures. In the typical matrix, subject matter specialists—such as finance, human resources, or I/T specialists—report both to management in their specialty and also to management in the line area that they support. Matrix organizations vary in which of the two reporting relationships is direct and which is indirect.

For example, when I was a Human Resources director, I reported directly to the line area and indirectly to the Vice-President of Human Resources. But similar matrix organizations might well choose to have the direct reporting relationship be to the Vice-President of Human Resources, and the indirect reporting to the line area.

Obviously, a matrix reporting structure adds complexity to an organization. Sometimes it is higher cost as well. And employees in the matrix do sometimes get pulled in conflicting directions—when there were differences of opinion between my direct boss and the V-P of HR (who were peers), I and others in my same role in the organization had to exercise a fair amount of diplomacy to work our way through the situation.

So the benefits of the structure must outweigh these disadvantages. What are the benefits? Here are the main advantages I see:

1. Better service to the business

When HR and other corporate specialists are not aligned with the business units they support, they often develop a rigid silo mentality. Finance specialists do not consider what each division needs to measure for greatest productivity. I/T specialists develop systems in a vacuum. And HR specialists impose performance incentives that do not relate to the work being done.

The conflicts I experienced in the matrix organization where I worked were occurred when the HR division rolled out such initiatives as management training programs and compensation systems that did not work in the part of the corporation where I worked. The challenge I faced was in working with both HR and the line area to adapt the corporate system to what would work in my division. I think our division—and therefore the entire corporation—was better served because of this attention to what was needed and not needed in different work groups.

2. Expertise and flexibility of specialist functions

Although having a group of corporate specialists can develop programs that are extra work in some divisions, they are also able to make world-class expertise available across the corporation. This prevents specialists from becoming stale in what they can offer the company.

Had I been aligned solely with the business, I would not have had the opportunity to work with as many HR specialists and learn as much about my area of expertise. The matrix permitted our corporation to have more HR specialists who could develop more leading-edge programs that we could take across various divisions. Not every program worked everywhere (as explained in the preceding section), but we were still better off for having tried a variety of new things.

A recent Wall Street Journal article stated that improvements in military trauma care are limited in part because

“no single general is in charge of battlefield medicine. Combat commanders—infantrymen, artillery officers and others with no medical training—are in charge of medical personnel on the front lines.”

In other words, if there were a matrix organization giving a medical professional oversight of all battlefield medicine, in addition to the combat commanders, trauma care might improve.

3. Better development of specialists

I acquired better HR knowledge faster by working in a matrix organization than I would have working by myself in the line division. I gained a broader perspective on the organization from seeing how other HR specialists worked in their divisions, and I saw my particular division at a deeper level than I would have if I had worked only in HR.

I also learned better “managing-up” skills than I would have in a siloed organization. By having to serve two masters, I learned tact and persuasion. I also learned to find my allies and how to predict when I might face an exploding grenade. Sometimes I could even prevent the grenades from landing.

Conclusion

As one article stated, “Organization structure should always follow strategy.” Where integration across divisions is important for corporate strategy, then a matrix organization makes sense. Just be aware of the pros and cons when choosing this complexity.

Moreover, it is important to keep in mind that every organization is designed perfectly to get the result it gets. The reporting structures and matrix relationships will impact organizational results. According to Jay Galbraith, strategy, structure, processes, rewards, and people all need to be aligned to successfully implement a matrix organization.

For good information on matrix organizations, see

What is your experience with matrix organizations?

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Performance Reviews—Make Them More Flexible to Make Them More Meaningful


Business Handshake2016 is half over. I’ve asked before in the middle of the year, are you halfway toward meeting your performance objectives?

That question is still a good one to ask yourself as a form of self-assessment. But it might need tweaking. From a management perspective, the question is probably less relevant than it has been traditionally. There is a trend away from annual performance reviews and annual objectives toward a more flexible system. I think this is a good trend.

Businesses from General Electric to IBM to Goldman Sachs are moving to more project-oriented, shorter term performance objectives. And if GE is changing, you know something is afoot—Jack Welch instituted the epitome of the “rank and yank” performance management system.

The best performance management systems focus on (1) on aligning employee performance with organizational goals and (2) communications between managers and employees. The “annual” nature of performance management worked better in a steady-state business environment than in today’s faster paced, ever-changing situations

I have long been an advocate of managers’ giving performance feedback more frequently than once a year (see here, here, and here). And if managers don’t conduct regular formal or informal performance reviews, employees should ask for more coaching and feedback.

But it’s all to the better if corporate systems promote this regular dialogue about performance.

The new IBM system, called Checkpoint, envisions shorter-term goals and quarterly progress reports. It judges employees on five criteria—business results, impact on client success, innovation, personal responsibility to others, and skills. So there are five scores, rather than a single performance rating.

GE is also moving toward a more flexible system with more frequent feedback.

And Goldman Sachs is dropping its numerical ratings in favor of “qualitative” feedback that is “real-time” during the year, rather than using annual reviews, though it is using verbal ratings of “outstanding,” “good,” and “needs improvement.”

All these systemic changes feel like they are moving employers in the right direction on performance management. But, as with most management tools, it isn’t the tool or the system that is important, but the communication between managers and employees.

As one writer recently pointed out,

“The more seriously an organization takes its performance review process, the less human a workplace it is!”

The focus should be on the human element, not on administering a system.

What is your company doing to keep its performance management system relevant to today’s workforce?

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Suicide Prevention: Yes, You CAN Help


suicide prevention logoThis topic may sound grim, but the bottom line is that we can help our colleagues with mental health issues, if we know what to watch for and how to offer assistance.

I have been fortunate not to have anyone close to me commit suicide, though I have known professional acquaintances who killed themselves and I’ve had several friends who have been devastated when a loved one committed suicide. I’ve known many people who have suffered depression. Some have received treatment, and others have not. The problems of depression and suicide are real in any workplace, and perhaps especially in the legal profession.

I attended an American Bar Association CLE program last week on the topic of suicide prevention in the legal profession. My purpose in attending was to obtain the Ethics CLE hours I needed to maintain my bar license. That purpose was fulfilled, but I was struck by how susceptible lawyers are to depression and suicide.

  • Lawyers are 3.6 times more likely to suffer from depression than non-lawyers.
  • Lawyers rank near the top in professions in incidence of suicide. Suicide is the third leading cause of death among attorneys.
  • 20.4% of law students have thought seriously about suicide sometime in their life, compared with 5% of all graduate students
  • 20.6% of attorneys admit to problematic drinking, compared to 11.8% in a broad, highly educated workforce

The problems of mental illness and suicide in the legal profession are serious. Yet attorneys are not likely to seek help. Attorneys are often perfectionists, and their very perfectionist tendencies both cause them to be more prone to depression and less likely to seek help. Lawyers worry about privacy and confidentiality concerns. They wonder if they will lose professional status and the ability to obtain and retain clients.

Many years ago, I worked with one attorney who shut himself in his office every day for about six weeks. He said he was writing the definitive brief on a particular issue for a case he had. Yet he closed himself off from all his other work and from the rest of his colleagues. This man and his wife had recently separated, and I now realize he was exhibiting classic symptoms of depression.

There are many physical and behavioral signs of depression. Some common signs include

  • Physical: high blood pressure, chest pains, rapid heartbeats, headaches, and/or fatigue—all physical symptoms of many diseases.
  • Behavioral: more rapid speech, less conversation, isolation from contact with coworkers, weight gain or loss, erratic or changed schedules, disheveled clothes or lack of bathing, or other unusual behavior in the workplace.

When you work with someone regularly, you know when they are not behaving normally. As the commentators in the ABA program said,

“When you know a person, you know what is normal and what is not normal.”

So, what do you do if a colleague is acting oddly?

If you notice a colleague acting oddly—abnormally—then talk to him or her. Don’t be afraid to be direct in asking if the person is thinking of harming himself or herself.

Risk factors for suicide include:

  • Previous suicide attempt (particularly if there has been more than one)
  • Substantial psychiatric problems
  • Alcohol or substance use
  • Resistance to accessing mental health treatment

Ask about these things in particular.

Not everyone with these risk factors will try to commit suicide. But there are warning signs. The ABA program gave this list of warning signs that someone may be seriously contemplating suicide:

  • Ideation — They have thought of suicide and may have a plan
  • Substance use — They are drinking or self-medicating more (with legal or illegal drugs)
  • Purposelessness — They feel their life has no meaning
  • Anxiety — Their anxiety feels overwhelming
  • Trapped — They feel trapped by their circumstances, unable to see a change
  • Hopeless — They feel hopeless
  • Withdrawal — They are withdrawing from friends and family and activities they enjoy
  • Anger — They feel anger, perhaps irrationally
  • Recklessness — They act recklessly, not caring about harm to themselves or loved ones
  • Mood Change — Their mood is atypical for them for a sustained period

If you know someone with these warning signs, find a way to get them talking. “How is your day going?” is a good opener.

Of course, it helps if you regularly solicit input from your colleagues. An open, inviting workplace offers the best chance of knowing when someone is in emotional pain. The “How is your day going?” opener should not be reserved for coworkers who are possibly suicidal.

Then, when a friend or colleague opens up to you, don’t just give them a pep talk, but really listen. Don’t minimize their concerns, but do express concern and offer assistance. People who are suicidal will not respond to “I’m sure things will get better.” They cannot hear that, and they need help. Let them know you care. Let them know you will get them professional help.

Have resources at your fingertips to call if the problem seems serious and immediate.

Resources that all professionals and managers should have available include the National Suicide Prevention hotline (in the U.S., the number is 1-800-273-TALK).

If you’re in the legal community, know your state’s lawyer assistance program number; it can be found from the American Bar Association link to each state’s site.

Know what resources your company or law firm offers, and have the Employee Assistance Program number handy. Have the number of a local emergency room available.

You can help by offering to stay with them while they call a hotline or your local Legal Assistance Program. Or take them to an Employee Assistance Program counselor.

If you are talking with the person over the phone and not with them, but are seriously concerned about his or her safety, do not hesitate to call the local police and ask them to make a well-being check.

The ABA program I attended was a good reminder for me that we need to watch out for each other in the workplace. When I mentioned this ABA program to a friend of mine in the military, he said that he had attended similar training through the military.

The advice he received was the same that the ABA stressed — ASK! Communicate with your colleagues. Be direct in asking if they are thinking of harming themselves. If they say yes, take action.

Excellent advice for all of us.

What training have you had in suicide prevention? If you have additional tips, add them in the comments below.

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