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It seems that one of the core competencies an HR professional must develop, particularly in smaller organizations, is the ability to handle frantic, panicky, anxious managers who feel victimized by the Family and Medical Leave Act (FMLA).

No other HR law creates as much angst and confusion as FMLA. The law is simple in explanation, elusive in practice. Everybody who works 1250 hours a year after their first year of employment is entitled to twelve weeks of leave to cover absences related to serious medical conditions involving self or family members. Pretty simple on the surface.

The problem in really understanding the law is the use of the phrase “twelve weeks,” because that implies chunks of time that a manager can easily plan for, like vacations. It’s more accurate to say that everyone covered has 480 hours of leave, because the law allows for two kinds of leave that give managers fits: intermittent leave and reduced-schedule leave.

Intermittent leave seems to be the most difficult to deal with. Essentially, an employee with, or caring for a family member with, a serious medical condition that involves occasional flare-ups or continuing treatment can spread those 480 hours over the entire year, often at very inconvenient moments for managers. Although the law asks that employees give notice of potential absences, the phrase “when practicable” applies to FMLA. Sometimes a condition (migraines, for example) is inherently unpredictable and may even prevent the employee from calling in. If the medical practitioner writes something like “may be absent 2-3 days per month at unpredictable intervals,” that means that all of those absences are protected absences that the employee has the right to take. This can give managers migraines as they try to deal with the impact of slipping deadlines and coverage issues.

Equally problematic in the small organization is reduced-schedule leave, which occurs when the medical provider indicates a person can only work a part of his or her weekly schedule. Managers who had been counting on a key person being there for an important launch or to finish a critical project on time find themselves in a difficult spot.

These two situations invariably cause the frustrated manager to storm into HR and interrogate the HR professional about loopholes, exceptions, second opinions and suggestions to hire private detectives to see if the employee is really does have a “serious medical condition” or is just trying to avoid work. Some managers even go around HR and try to get people to work from home in defiance of the medical practitioner’s restrictions.

While I have known a few employees who have used FMLA improperly, the vast majority of people on FMLA don’t want to be there. They don’t want to have a serious medical condition and live in constant state of anxiety. They want to work and they want to get back to work as soon as possible. The last thing these people need is a flipped-out manager who cares only about getting the work done and shows little or no concern for an employee who needs care and compassion.

The problem isn’t that people go on FMLA. This is life; stuff happens. The problem is managers who don’t know how to plan to save their lives.

My advice to HR professionals on how to deal with managers who make FMLA more difficult than it needs to be is as follows: when you train managers on FMLA, open your talk with a single slide free from graphics that contains one message: “FMLA is the law. Get over it.”

Once they’ve recovered from the shock, explain to them in simple terms how FMLA works. Then tell them how to prepare for it:

  • Plan your overall staffing needs based on the assumption that at least one person in your department will always be out on FMLA.  Double that number for every ten people in the department.
  • Ensure that all processes in your department are documented and easy to follow so that anyone can step in and do the essential job requirements with a tiny bit of refresher training.
  • Make sure you have at least one (preferably two) backups for every job in your department. Implement a cross-training plan and stick to it. Make sure the backup is regularly informed of what’s happening in the job they’re assigned to cover.
  • List all of the resources you have available to fill a position temporarily: temp agencies, temp pools, interns, floaters, borrowing people from other departments.
  • Don’t be afraid to ask your fellow managers for help when you’re tight on staffing.
  • Learn how to do all the jobs yourself. Particularly when it comes to intermittent leave, you may find that you are the backup.

The law expects that management will make whatever preparations are necessary to comply with FMLA requirements. With a little planning and forethought, managers can avoid panic, keep things running and focus their energies on encouraging a person with a serious medical condition to take the time to get better soon.

And that’s exactly where they should be.

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A former colleague who is now an HR executive for a new technology venture recently contacted me to find out if I would be willing to help her draft her policy manual. I responded with a laugh and a resounding, “Absolutely.” She sighed, and said, “Really, I almost hated to ask because I thought the last thing you would want to do was write policies!”

There’s a very good reason why I’m happy to write policy manuals: very few things can damage your culture and the level of trust between managers and employees than badly-written policies. This is one of the reasons we insist on the integration of HR and OD. If you’re trying to build a culture of trust, empowerment and engagement, you’re sending a mixed message if your policies contain the message, “We don’t trust you.”

For most organizations, policies are a headache. People generally don’t like policies, and in some organizations, policies are little more than a CYA mechanism in case trouble arises. Often written in boring, legalistic language that can only be interpreted by attorneys, employees often sign the annual “Yes, I have read and understood the guidebook” statement without really reading the guidebook. Managers often spend tremendous energy trying to figure out ways to work around the policies rather than collaborating with HR to find workable solutions that satisfy the policy requirements.

These are all symptoms of a bigger problem. If your managers don’t follow your policies, those policies will provide little in the way of legal protection. If your employees can’t understand your policies, there’s very little chance that they will accept responsibility for the behavior encouraged by those policies, thus making it more difficult for managers and HR professionals to successfully deal with employee relations problems.

This is why the worst thing you can do is approach policy development purely from a compliance standpoint. Yes, you must obey the law, but you must also obey the values of your culture to give your policies credibility. When your policies are woven into the consciousness of your culture, they become an extension of the values of your organization, the guideposts for everyone to use as they navigate through the work day. Policies should not be drafted on the old rules-obedience model, but viewed as a golden opportunity to reinforce important cultural values.

So how do you take policies from a collection of admonishing, “Thou shall not” statements to more of the “golden rules” of expected behaviors? Here are a few tips to get started:

  • Change your perspective toward policies. Realize that the policies you adopt should be the expression of important values that the organization believes should guide behaviors. For example, an Equal Employment Opportunity or Diversity policy can be an affirmation of the company’s value of respect and fairness rather than just cut-and-paste legal filler.
  • Choose your policies wisely. Of course, every organization needs a core set of policies that reflects proper governance of the business. But you don’t need policies for everything. Focus on policies that address situations that are common to your industry and workplace. Stick to the things that are important. Ask yourself a couple of questions, “Why do we want this policy? What is the core value that we are trying to support through this policy?”
  • Policies should be written in clear simple language that anyone can understand and in such a way that people understand their choices and the consequences of those choices. When managers have options on how they can implement a policy, make those options clear; if the only option is to obey, link that obedience to one of your fundamental values.
  • Don’t draft policies inside the walls of HR. Consult with managers and employees when you develop and vet your policies to see if they are clear, understandable and helpful. Note that this is not a call for consensus decision-making; the final decisions on policies rest with the executive team and HR, with obviously significant influence from legal counsel. That said, you can gain more support for your policies if you allow people to have a say in developing them.
  • Finally, don’t confuse policies with processes. Policies express positions, values and general guidelines; processes focus on how-to’s. How-to’s change much more often than positions and values, so the general rule is to keep them out of your policy manual to give yourself operational flexibility and reduce clutter.

As with all HR activities, value comes from how the activity supports the business strategy and the culture. If you design your policies with that in mind, you’ll create policies that are relevant, meaningful and helpful . . . and policies that people will actually read and support.

Photo Credit: © Sergeitelegin | Stock Free Images &Dreamstime Stock Photos

In a world filled with uncertainty, there’s one thing you can always count on.

Harassment Prevention training videos are invariably boring.

The combination of soap-operatic writing, rookie actors and third-rate talking heads is only part of the problem. The greater problem is that these videos are primarily produced and marketed for HR leaders more interested in a cheap, reusable form of CYA instead of stimulating the minds and hearts of the audience. Some even stick these dreadful little films into their onboarding schedule, not giving a hoot about the need to engage new people in mission and values, but very concerned with getting the new employee’s signature on a legally valid document.

Only recently have people become aware that the concept of harassment applies to more than sexual behavior. People can be illegally harassed on the basis of race, religion, national origin, gender, disability, gender identity—in other words, any human demographic identified as a protected class under federal, state or local law. This dawning awareness gives us the opportunity to rethink harassment prevention training by looking for common threads that link all forms of harassment and building training programs around fundamental principles that govern human relationships. Learning based on this approach is much more likely to stick with learners . . . and hopefully prevent the video companies from producing more unwatchable cinema.

The other weakness inherent in the video-only approach (which also applies to web-based programs) to compliance is that is devoid of interaction. Harassment is a controversial and often emotional topic and people need to talk about it! Creating a learning environment where people feel safe to express thoughts and feelings that may be politically incorrect is necessary to get people to face what’s lurking under the surface. Allowing people to discuss uncomfortable subjects helps them work through their thoughts and feelings, transforming resentment about “having to go to school” into a productive and meaningful use of one’s time. The truth is you can’t get people to respect each other’s differences by showing them a video or having them read a policy. You can only achieve that in the real world of human interaction, because that’s where differences are experienced.

Such an approach requires competent facilitators who can demonstrate openness and curiosity while consistently upholding the core values behind harassment prevention without getting preachy. Those values have to do with respecting differences, acknowledging and accepting boundaries and appreciating diversity as a gift. It’s all about The Golden Rule and its modern variation: treat people as they would want to be treated.

But it’s also important that the facilitators have a sense of humor and know how to have fun with the topic. After all, we are talking about the law, and as we all know, the law is filled with stories of human missteps, both comic and tragic. If you want to get through to any audience in our stimuli-obsessed culture, you’re going to have to be entertaining, and great trainers realize that theatre is just as important as content in keeping the audience awake and engaged. This is even more important in training that people are forced to attend, because they enter the classroom expecting the worst. When you give them an experience that respects them as adults, respects their time, and makes them think, feel, laugh and learn, you can make much more of an impact on risk reduction than you can by boring them to tears.

The HR Difference offers Respectful Relationships, a fully-customizable harassment prevention program taught by experienced facilitators with years of real-world experience investigating harassment and discrimination complaints. Our facilitators have been delivering harassment prevention and diversity programs for over fifteen years in organizations large and small throughout the United States, and have HR executive experience in the great state of California.

Photo Credit: © Netris | Stock Free Images & Dreamstime Stock Photos

A recent announcement from the EEOC describing their draft strategic enforcement plan for the upcoming months listed the following discriminatory practices as examples of what they’re targeting:

  • The channeling/steering of individuals into specific jobs due to their status in a particular group. Yes, this still happens. I don’t see too many male executive assistants or female construction workers, to say nothing of the continuing shortage of female and minority executives.
  • Restrictive application processes. A broad term that could mean anything. I wish they’d do something about tedious application processes, legal or not.
  • The use of screening tools that adversely impact protected groups. This parallels their recent reminder to employers about job-specific background checks, but could also eliminate the practice of many prominent employers that make year of high school graduation a required field on their online applications. Any idiot can calculate a person’s age from that statistic.

This is a classic enforcement agency list that misses the impact of common hiring practices that truly result in discrimination. Here’s what they missed:

  • Not having a hiring process at all. Too many jobs, particularly at the executive level, are filled by someone the hiring manager knows and has worked with before. An equally despicable practice at the higher levels is hiring someone who has valuable connections or a pedigree while ignoring the competencies required to do the job. Unethical HR people then cover the unethical executive’s tracks by completing the tracking logs as if the winning candidate was selected in a competitive hiring process. Hiring someone they know may relieve hiring managers of the desperation anxiety that arises whenever there’s an open job, but it is a biased, unfair and exclusionary practice.
  • Not focusing hard enough on age discrimination. This one is such an obvious candidate for enforcement that you have to be stoned out of your mind (or working in Washington, D. C.) to miss it. What does every outplacement agency tell older candidates? “Don’t go back more than 15 years on your resume.” Why? Because of likely age discrimination. Many people over 40 have learned to exclude certain companies (particularly tech and Internet companies) from their job searches because they know they’ll be stereotyped as yesterday’s news. People have learned to accept age discrimination as a fact of life, and given the huge number of Baby Boomers in the job market today, I’m surprised that there hasn’t been more of an outcry. Then again, given their early indoctrination into the philosophy of “Hope I die before I get old” and market for youth-restoring plastic surgery, it’s likely that most Baby Boomers are too ashamed to admit they’re entering the golden years.
  • Not questioning candidate evaluation methods and records. Pretty much all you have to do in your recruiting logs is say “did not pass interview” or “failed phone screen” and that’s that. This is why managers can get away with telling the recruiter, “I just think Louise is a better fit.” Recruiters rarely push for specifics because they’re just happy to close another req. Hiring managers are seldom held accountable for justifying their decisions or for documenting specific examples of a how a candidate did nor did not meet the competencies the job requires.

In a legal sense, the tagline “equal opportunity employer” means that race, gender, age and all the other protected classes are irrelevant to a hiring decision. However, the spirit behind that phrase is far more important from an ethical and professional standpoint. The goal of anyone involved in the hiring process is to find the best person qualified for the job, and you can’t achieve that if the real hiring process is limited to buddies, people who attended certain universities or someone who has a “name company” on their resume. All of those considerations are not only irrelevant, but contradict a company’s claim that they are an “equal opportunity employer.” What those practices do communicate is that the hiring company is a narrow-minded closed network of like individuals who arbitrarily exclude people for no valid reason at all.

HR people (especially recruiters) need to have the courage to stand up to hiring managers, declare war on mediocrity and insist on an open, fair and competitive hiring process. Just filling the req isn’t good enough. A great company hires the best people through a professional hiring process where everyone feels they had a fair shot and even those who lose out develop a healthy respect for the company’s sense of fair play.

The EEOC won’t tell you to do that, but do you really need them to?

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David Brooks of the New York Times recently outlined a Republican proposal for fixing health care. The one paragraph that drew my attention reads as follows:

Finally, under this approach, any new spending would be offset with cuts so that health care costs do not continue to devour more and more of the federal budget. This could be done, for example, by gradually raising the retirement age.

Raising the retirement age only makes sense if you’re trying to solve a math problem and you choose to ignore the reality of today’s employment market. The reality is that age discrimination is so rampant that raising the retirement age would only serve to add millions of Baby Boomers to the unemployment rolls.

Age discrimination is America’s dirty little secret. It’s a secret because age discrimination plaintiffs have few options under the law. Sure, you can file an EEOC claim, but the practical facts are that the EEOC is has a huge backlog of complaints and age discrimination is very difficult to prove. A candidate for an open position has no visibility to the ages of the other candidates, so any kind of complaint is a shot in the dark.

The facts speak for themselves. The numbers from the Bureau of Labor Statistics clearly demonstrate that over-50’s remain in the ranks of the unemployed longer than their younger counterparts. In the Seattle area, it’s common knowledge that the hip technology companies systematically discriminate against those with gray hair—so much so that many over-50’s no longer bother to apply at those firms. Over the past year we have heard numerous tales of exceptionally qualified over-50 candidates who consistently pass phone screens only to lose out after the company’s interviewers see them live and in-person. We know of some companies who have made the disclosure of the year of high school graduation a mandatory field in the online application, an egregious legal violation if there ever was one.

Age discrimination is based largely on stereotypes that over-50’s are technologically challenged or “slow.” This is all stuff and nonsense. Steve Jobs was at his peak when he hit 50. In the many organizations we have served, we have seen many under-30’s who would easily qualify as “slow” and “technologically challenged.” Age has nothing to do with the ability to do a job; the ability to do any kind of work is dependent entirely on the abilities and character of the individual in question. This applies to the young as well as the old, for there are too many stories of young people being denied opportunity based on vague premises such as a “lack of seasoning.”

Equal employment opportunity is all about hiring people for their talents and taking irrelevant factors out of the hiring decision. HR professionals need adhere to their code of professional ethics and challenge ageist stereotypes when they see them. Most importantly, leaders and hiring managers need to adopt processes that ensure that all candidates have a fair shot all the way along the hiring path.

Raising the retirement age is a classic example of solving one problem to create another, a skill our government has mastered. I can certainly envision our political leaders responding to this “new” problem of age discrimination by creating affirmative action programs and stacks of new, complex regulations that no one wants.

Let’s keep them out of it and solve the problem ourselves. “We are confronted with a moral issue as old as the scripture . . .  as clear as the American Constitution,” to borrow a quote from JFK. Instead of waiting for the regulators to bully us into submission, let’s do the right thing. Let’s hire the best person for the position, regardless of how many or how few miles they have on the biological odometer.