Monthly Archives: January 2017

What Trump’s Immigration Executive Order Means for Employers

In The News, , ,

I am pleased to share my  latest article posted to Philadelphia Business Journal.

Last Friday, President Trump issued an executive order that:

  1. Suspends entry of all refugees to the United States for 120 days;
  2. Bars Syrian refugees indefinitely; and
  3. Blocks entry into the United States for 90 days for citizens of seven predominantly Muslim countries. The countries are: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

Four federal judges have blocked implementation of at least parts of the executive order.

Even so, it appears the Trump Administration will continue to back the order, causing questions to arise for employers and what it means for their employees who have green cards or other foreign nationals who are lawfully working for them.

Does the executive order cover individuals with green cards or other foreign nationals with the right to work in the United States?

The answer to this question is unclear. Members of the new administration have said it does not apply to those who hold green cards. But these statements are not law. Plus, even if the executive order does not apply to those with green cards, what about those who hold other visas to work in the United States? Until there is greater certainty, employers should assume the executive order may apply to all employees who are citizens of those seven-designated countries.

Should employers make clear that foreign nationals from the 7-designated countries do not have to travel?

Yes – employers should not require employees who are citizens from those seven affected countries to engage in business travel for them outside of the United States. Why not? We don’t know if they will be able to get back in! Such employees should be assured the absence of such travel will not have adverse impact on their employment status.

What if an employee who is a citizen of one of the seven impacted countries wants to engage in international business travel notwithstanding the executive order?

In these cases, employers may be tempted to say no to protect their employees from the unknown. But the courts have generally rejected “paternalism” as a defense to discrimination and this could be deemed discrimination based on national origin.

In these cases, employers should explain the personal risks the employee is voluntarily undertaking and ask him or her to acknowledge same in writing.

Can employers prohibit personal travel to their homelands by foreign nationals from the 7-designated countries?

This probably is overreaching and could be discriminatory. Is relying on an executive order the scope of which is unclear a valid defense to a national origin discrimination claim? I don’t know the answer and would not want any client to be the test case.

However, employers can and should communicate the risks of personal travel for some. At the same time, we don’t want employees from these countries to feel targeted. The reality is that many already do. So make sure the communication goes to all employees; also, employees not directly affected by the executive order care about their colleagues, too.

What will happen next?

I have no idea. I do know the situation if fluid, and that employers need to communicate with their employees. The level of fear and anxiety that can be found on social media does not remain there. It is in your workplaces, too

This is not legal advice pertaining to specific factual situations.

Mary Tyler Moore and Single Women

In The News, , , ,

I am pleased to share my post to the SHRM blog regarding the legacy of Mary Tyler Moore.

A lot has been written about the passing of Mary Tyler Moore. Perhaps we did not know at the time how ground breaking the Mary Tyler Moore show was. In retrospect, it is clear to us.

There are so many episodes that dealt with gender equality, including when Mary was paid less because she was a woman and denied opportunities because she was not a man. With a wonderful combination of strength and humor, she leaned in….and prevailed.

But there was something else about Mary Richards that is getting less attention: the fact that she was single. No, it was not because of a death or divorce but rather a choice.

I have spoken with many single women about workplace issues. A blog on this issue was slated for later this year but the timing unfortunately feels right now.

Single woman have shared with me:

1. They have been asked why they never married. Are married women (or men) asked why they choose to marry? The often unspoken assumption: it was a result, not a choice.

2. They sometimes feel excluded from discussion on managing work and life. While many single people have children, many others don’t. Our respect for life outside of work cannot be restricted to those of either gender who are married with children.

3. They at times feel marginalized when invitations to employer events include spouses, partners or significant others. I know some men who feel the same way. Why not just “adult guest?”

Yes, some state laws prohibit discrimination based on marital status. And, I don’t believe many women (or men) are denied jobs or opportunities because of their single status.

In fact, sometimes they may be given extra work, particularly if they don’t have children. The conscious thought process or implicit assumption: they don’t need to go home.

The dialogue about intimate relations has become refreshingly more inclusive. Yet, we sometimes fails to recognize those who are not in them.

Do single men face the same issues? I am not sure.

I think single men are often seen as having made that choice. Well, this is a choice more and more women are making, too.

So when we remember Mary Richards, we can remember her “spunk.” Lou Grant, I love spunk!

And, we should remember what a pioneer she was for women generally. But I suspect she holds a special place for single women everywhere.

In our workplaces, let’s continue to challenge ourselves to be more inclusive. It’s the least we owe Mary!

IT and HR Must Work Together to Improve Security

General, , ,

I am pleased to share my latest article for SHRM regarding the role of HR in cyber security.

Cyber security is a significant concern for businesses, and it is only going to get bigger.

In 2016, many companies of all sizes were affected by cyber attacks from outsiders.

But some cyber security breaches are inside jobs. Sometimes they are deliberate. Other times, the breach is due to human error. Either way, these attacks can have disastrous effects.

The National Cyber Security Alliance, a Washington, D.C.-based think tank, reports that a data breach can shutter a small business. And a survey by Russian cybersecurity company Kaspersky Lab, 2016 Corporate IT Security Risks, stated that the average amount of damage caused by one attack may cost small and medium businesses up to $99,000.

The practice of cybersecurity carries with it legal and reputational implications. So the question becomes: Who owns these responsibilities?

However, I bristle at the notion that a single function “owns” an issue because then employees in other functions may believe by negative implication that they do not need to do anything. In this case, while IT plays a central role, ownership of cybersecurity must go beyond IT and include HR, among other departments.

Let’s divide HR’s role into five categories.

HR as the Problem 

Sometimes in HR we feel like we are the policy or procedure police. Well, sometimes we are the culprit, too. As you well know, HR has access to highly sensitive information, including employees’ Social Security numbers and some medical information. HR needs to evaluate whether the background check procedure for those seeking positions in the HR department is robust enough. In some organizations, criminal record and credit checks are done for some employees in finance and IT but not for employees in HR. HR needs to consider this gap.

HR Policies

HR may want to consider including in the employee handbook or other policies a summary, developed with IT, of do’s and don’ts relative to cyber security. This is not in lieu of but in addition to mandatory employee training.
Here is but one example: Employees must report immediately the loss of any device, including a mobile phone, that contains their employer’s confidential information. Immediate reporting and rapid wiping can mitigate the risk materially.

HR and Employee Training

As noted, employee training is essential. IT can develop the training program, but HR plays a key role, too. For example, HR can listen to the proposed program and make sure it works for the intended audience. Simply telling employees not to fall for phishing schemes is meaningless unless you define phishing and give concrete examples.

HR and a Rapid Response Plan 

In the event there is evidence that someone is appropriating confidential information, HR needs to be prepared to work with IT in questioning the employee and taking corrective action as appropriate. These are not IT investigations alone. IT should not be expected to have the expertise necessary to handle employee rights issues in the context of these investigations.

HR and a Business Continuity Plan 

If there is a cyber attack or an internal breach, whether deliberate or as the result of carelessness, the company is going to need to move quickly in response. How will the organization work if its systems are shut down? When must employees be paid if they cannot work? Legally, what notification requirements exist if certain employee information (or that of patients or customers) has been exposed? As with any other crisis, whether it be a weather disaster, an incident of violence or a pandemic, the role of HR in the business continuity plan cannot be underestimated.

The Problem With Saying Women Are Better At…

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I am pleased to share my latest post to Philadelphia Business Journal.

A recent study at Harvard T.H.Chan School of Public Health concluded that hospitalized patients treated by female physicians show lower mortality and readmission rates.

This study is getting a lot of media attention, and in many cases, the conclusions drawn go beyond the findings of the study.

Take, for example, the NPR headline: “Patients treated by Female Doctors Fare Better Than Those Treated By Men.” NPR is but one example. Here’s one more.

On a national TV program, the question was asked: who makes better doctors, women or men? Citing the report, the on-air talent said “women.”

But it is not just about doctors. The internet is replete with articles that report on studies that ask if or conclude that women are better leaders than men.

I understand why the Harvard study is vitally important. Women still face very real bias in medicine (actually, everywhere), and we need to increase our focus on the contributions of women that are often under-appreciated and profoundly unrecognized to combat that bias (including pay to which I will return).

But would we ever ask: who makes better doctors, white people or people of color? Hispanics or African Americans?

Of course not! But why is it okay with gender? Well, it’s not.

It’s no more okay than the surveys that ask would you rather work for a male or female boss? In some cases, the majority answer “men.”

Would we ever ask if you want to work for a person who is white or a person of color? The question indulges in bigotry and so does the question on gender. If someone want to choose the gender of their boss, let them start their own business and work for themselves.

We need to sell the benefits that go with diversity to increase support for smashing conscious bias and bringing to conscious awareness implicit bias. Stated otherwise, if we want to cream the crop, and who doesn’t, we need to harness the talent women bring to the table and not nearly enough is done to do just that.

But we need to be careful not to stereotype in our efforts to eradicate bias and increase inclusion. There is no such thing as “benign” stereotyping and here’s why.

First, the stereotyping creates higher expectations for its intended beneficiaries. It is not enough for women to be competent doctors, leaders, etc. No, they must reach our inflated expectations.

Let me give you an example. Let’s assume that the average male is a “5” on a scale of “1” to “9” in terms of core competencies. If we assume women are stronger, we may expect a “7.”

Now, we interview a woman who is a “6” and a man who is a “5.” She is the stronger candidate but he may appear better because he meets our expectations and she does not meet our inflated expectations.

Second, the stereotyping may result in discrimination against men of talent. This is both a talent and a legal issue. Under the law, gender bias knows no gender.

Finally, by focusing on gender, we don’t get at the root cause of what makes someone more effective. Our focus should be on competencies.

For example, in both leadership and medicine, strong communication skills are critical. That explains, in part, the results of the Harvard study.

So our focus should be on the communication and other skills that have resulted in women outperforming men. And, then we should make sure that, when we, hire, evaluate, promote and pay, we consider those key skills.

When we focus on competencies, as we should, it very well may mean that more women than men will thrive but we are recognizing a core skill and not unwittingly engaging in gender bias. In medicine, the failure to understand the difference literally can have life and death consequences.

Lost in the headlines beyond which many do not go is another key finding. The story within the story is that, while the women performed better than men in this study, they still made materially less money.

The gender pay gap is alive and well in medicine and virtually every aspect of corporate America. Of course, there are legal reasons to address it.

But the business imperative is just as great. Imagine if those gifted doctors who are women leave the profession out of frustration for being paid less, even where they not just meet but exceed the performance of their male peers? That, too, is a life and death issue, literally.

Swinging for Singles

General, , ,

I am pleased to share my latest post to The SHRM Blog regarding goals in the new year.

As we start the New Year, many of us have made resolutions for personal growth in the professional space. After a few days off and the excitement of the promise of a new beginning, many of us set bodacious goals for ourselves. When we do so, we set ourselves up for failure.

To be clear, I am not talking about business goals. We need to stretch ourselves and often are stretched by the business needs beyond our own stretching. I am talking about how we handle ourselves in reaching those goals. That’s the kind of personal growth about which I write.

Many opportunities for growth are our strengths taken to the extreme. For example, we are driven but sometimes lack the patience with others who don’t drive at the same speed. This may leave them feeling less than so they deliver less than we expect of them.

The bodacious goal is to become as copacetic as the colleague who is deeply driven but also has breathtaking patience. You may not be wired that way. I for sure am not.

The more realistic goal is to try to be more patient (not patient) and think of specific situations where it is attainable. Not sure of what they are? Ask a trusted colleague. Or, think of times when you did not get the response you had hoped for and ask: what was my role?

When I was a little guy, I loved playing baseball. I had a great eye but was not very strong. So, I swung for singles and did rather well. When I swung for the home run, I missed every time. Actually, the same is true for doubles.

In life, I try to swing for singles. And, that includes in personal growth. I think if we are realistic and gentle with ourselves, we are more lucky to be successful and gentle with others.

So happy New Year and may the year be full of singles. And, if you miss the ball, keep swinging. If you improve by “only” 30%, you are batting 300. Not bad, huh?

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.