A New Approach to Overcoming Workplace Bias

Whether we like it or not, most of us have racist, sexist, ageist, classist, and other stereotypes embedded in our minds; like the information on a CD, they are permanently burned in our brains. We pick up stereotypes, starting at a very young age, from our parents, teachers, friends, classmates, the news media, the entertainment industry, and from personal experiences. It’s human nature and unavoidable to make unfair generalizations about others based on their gender, appearance, beliefs, cultural background, or other qualities that are different from our own.

It’s important to understand that you'll never really be able to erase the “bad” information in your head or that of your employees. Think of that CD again – it’s already recorded there. But you can train yourself and, in your capacity as a human resources manager, your workforce can also be trained to be more mindful of how that bad information affects everyone’s daily actions, reactions, and decision making. You can learn how to manage the bad information and teach them how to do so as well.

You can also become more aware of your own gut reactions to people who are different from you, and you can question those reactions knowing they likely are based on stereotypes and biased images. Doing so makes you a model. As an HR professional, you are in an ideal position to change the way people at your company think of diversity and inclusion.

A major focus of diversity training is helping people understand and manage their biases – because we know we can’t completely erase our prejudices. Simply believing you can eliminate bias in your workplace is unproductive.

Four ways workplace bias negatively affects your company
Having preset assumptions and stereotypes about people based on their sexual orientation, marital status, body size, country of origin, religion, color of skin, economic background, gender, etc., will have a significant deleterious effect on your company’s ability to compete in the marketplace. Here are four reasons why:

Cuts off opportunities for growth. When employees pigeonhole a coworker with labels such as lazy; slow; naive; nonintellectual; good at numbers but bad with people; great follower but not a leader; or some other limiting stereotype, you will not be able to take advantage of his or her different and potentially valuable approach to a problem or task. Tapping diverse viewpoints and styles drives innovative problem solving and learning. Product or marketing development, customer solutions, technology innovations, better teamwork – these are just a few areas where a different way of thinking or doing things could significantly change your company’s fortunes.

Creates low morale and low retention. A workplace infected with prevalent prejudicial attitudes and policies is a place where nobody wants to work. Studies show people of color are three times more likely than their white counterparts to quit a job based on perceived unfair practices at work based on their race. Gay and lesbian professionals and managers cited workplace unfairness as the only reason they left their employer – almost twice as often as heterosexual white males. The statistics are staggering in nearly every minority group that has been studied. Whether you are a manager or a coworker, having an intolerant culture will affect everyone’s performance and make the workplace a rollercoaster of instability.

Leads to poor productivity. When bias is rampant in an organization, people will not team up, communicate, or consult about important tasks that require collaboration and multiple perspectives. Also, having preconceived notions about the way things should be done–that is, the majority view–forces people with different working styles, experience, and viewpoints to bend to the will of the majority. This results in individuals not working at their best and highest potential.

Damages your company’s bottom line. Biased, unfair treatment in the workplace costs U.S. employers $64 billion on an annual basis, nearly equivalent to the 2006 combined revenues of Google, Amazon.com, Goldman Sachs, and Starbucks. This estimate is based on the cost of losing and replacing managers and professionals who leave their employers solely due to workplace unfairness. Add in those for whom unfairness was a major contributor to their decision to leave, and the figure is substantially greater.

How to spot bias in your workplace
A first step to renovating your company’s diversity policies is to assess the extent of bias at your company. Here are some common signs to watch for.

Extracurricular diversity programs. When diversity and inclusion workshops are offered as occasional extracurricular activities, it demonstrates a lack of organizational commitment to cultural competency. Diversity and inclusion should be policy, not an “extra” that’s subject to cost cutting.

Chronic absenteeism/high turnover rates. Do you notice that women are constantly quitting, or that Asians, Hispanics, and African-Americans seem to come and go? Low retention among certain groups could be a red flag that your organization needs to do much more to reach out to and include these valuable employees.

Poor performance. Performance problems are often blamed on people rather than on organizational structures, systems, and ways of doing things (the organization’s culture). Poor employee performance can result from a number of things, including such factors as stress, exclusion, and lack of opportunity.

A dominant decision-making style. Is risk-taking discouraged? Have employees been given the message “it’s our way or the highway”? A single way to get things done may seem like efficient management, but it both discourages multiple perspectives and styles, and leaves exceptional talent and ideas untapped.

Homogeneous leadership. Is your C-Suite all white males? What about department heads? Organizations that truly value diversity and inclusion practice what they preach. If the same people are getting passed over for promotion, cultural competence may be a problem at the top.

Water-cooler slights. Seemingly innocent racist, sexist, ageist, or other insensitive jokes are a sign that your company culture tolerates disrespectful behavior. The use of mascots, symbols, or holiday celebrations that exclude certain groups is another sign. Such everyday conversations and activities can unwittingly hurt coworkers.

Not using diverse suppliers. Companies that are truly committed to building a diverse and inclusive organization to be innovative and competitive will also seek out diverse suppliers.

A new way to approach diversity training
It’s time to approach diversity from multiple perspectives or paradigms. Formal “traditional” diversity training grew out of a certain context, and the content and the way that particular training was conducted reflect that context. One could call this the “Social Justice” approach – an approach that flowed out of the Civil Rights movement and emphasized things like fairness, equality, justice, and righting the wrongs of the past. Within the approach, we had things like sensitivity training, anti-racism, and anti-sexism training.

But as many HR professionals know, this approach was great for some (i.e., “the choir”), but for some others (e.g., white males) this approach was perceived as WMB (white male bashing). Rightly or wrongly perceived, many white males (and others) felt excluded from the message of fairness and equal opportunity, and consequently there was, on many occasions, a backlash against “diversity training” and anything related. The Social Justice approach is still needed today, but it must be augmented by other approaches.

The “Cognitive Toolbox” approach
There’s a better approach for the 21st century, one I have labeled the “Cognitive Toolbox” approach. This approach puts emphasis not on Social Justice, but on creativity, innovation, and problem solving. The Cognitive Toolbox approach places great value on different perspectives, ideas, and experiences as necessary for solving complex problems. It equates a perspective to a tool, and consequently the more perspectives an organization has, the more tools it has to solve problems.

The power of diversity lies in the need to solve problems, whether those problems are coming up with a better product, creating a more efficient manufacturing process, or enhancing relationships in an organization. This approach has the added benefit of including everyone. Because the Cognitive Toolbox values multiple perspectives, it values multiple types of people who represent many different types of experiences.

A Social Justice paradigm emphasizes “diversity” as a just outcome. That is, “diversity” will be a result of caring about social justice. A Cognitive Toolbox paradigm emphasizes “diversity” as a necessary input ingredient for solving complex problems. Put differently, better solutions will be the result of diversity and diverse perspectives.

The Cognitive Toolbox approach is NOT a replacement for the Social Justice approach, but another option for addressing diversity and inclusion. Both are needed. As trainers, we must have many diverse ways of reaching our myriad of audiences. Our message of diversity and inclusion must resonate with the audiences with which we are faced.

Getting started: ten group activities for sparking diversity dialogue
As an HR professional, there are concrete, practical ways to get people at your organization thinking about bias in new ways, so they can recognize it in themselves and begin to manage it. I will leave you with some tried-and-true group activities to get you started.

1. New problem-solving approaches. If problem solving at your organization is routinely dominated by one approach or faction, try this. Ask every group member to write down a solution to the same hypothetical problem on a sheet of paper. Collect the answers, read them aloud, and discuss ideas that stray from the usual approach. Note the value of offbeat solutions.
   
   
2. Invite an outsider. Routinely seek out a colleague who isn't part of your usual “team” – and perhaps seems wildly unrelated in his or her expertise – to contribute to a project or pose an answer to a problem.
   
   
3. Question equality. Most people confuse equality with fairness. Ask employees to brainstorm examples – such as having the same number of stalls in a bathroom for women as for men, or giving left-handed children the same scissors as their right-handed peers – that prove the opposite. Now ask them to brainstorm conditions at your company that may also be equal – but not fair.
   
   
4. Recognize another person’s lens. Discuss a recent workplace policy change or a newspaper article, asking people for their perspectives and reactions. Discuss how each person’s “lens” – background, upbringing, and experience – shaped his/her opinions.
   
   
5. Open up to hidden talents. Think about your own untapped talents that people at your organization don’t know about. In a group, ask each person to brag about an area of expertise, a skill, or passion that he or she is not bringing to the workplace, and that others are unlikely to know about. Brainstorm how your organization could go about using these discovered gems.
   
   
6. Assess your organization’s diversity. Use a flip chart to record your observations, and ask the group to analyze the makeup of your organization, work group, or office. Do people of all colors span all levels of your organization? What about gender and age? Identify three or four concrete actions your group can take to fill the gaps at each level.
   
   
7. Hire in new places. Discuss where your organization habitually and historically looks for talent. How are you recruiting talent that will complement your workforce rather than simply fit in to the current structure? What types of measures could be put into place to ensure a broader, more comprehensive search? How will you attract and retain the best and brightest of the 21st century?
   
   
8. Imagine a perfect world. Have each group member write down the qualities, characteristics, and actions that would fall under the category of “doing diversity and inclusion well” in your organization. Read them aloud. Where does your organization fall short? Discuss concrete, specific ways these shortfalls can become opportunities for growth and improvement.
   
   
9. Examine the structure. Outline some of your organization’s people problems. Discuss how these might be symptoms of a systemic problem rather than isolated people problems. How might your organization address these structural weaknesses?
   
   
10. Weigh the benefits. On a flip chart, make two columns labeled Impact A and Impact B. Use column A to outline the benefits your company will reap as a result of engaging its increasingly diverse demographics. Use column B to outline the impact of staying homogeneous. Think long-term.

EG Expands its Influence Internationally
HR Certificate Program is developed and delivered in Japan

Mark Wilbur (left), Dr. James Yellowlees (center) and Ken Tiratira (right) flank some of the students in EG’s HR Certification Program in Tokyo.

Employers Group has long been at the forefront in helping California companies manage their workforces in a responsible, compliant manner – and that continues to be our primary mission. In line, however, with our global responsibilities, we have developed the first Japanese-specific Human Resources Certification Program (HRCP), and delivered a 2-day program in Tokyo last month.

As a result, a number of HR professionals from the Japanese branches of such U.S. companies as International Rectifier, Coca Cola, Ernst & Young, and The Hartford Insurance Company, received a Certificate in Human Re-sources Management 1. In addition, several Japanese domestic businesses also participated and obtained certificates.

“Japan is facing many new workforce management challenges, from recent labor law changes to global economic pressures affecting HR policies,” says Mark Wilbur, Employers Group’s President and Chief Executive Officer. “As more and more companies embrace the concept of global expansion, it makes sense for EG to help companies around the world deal with their human resource and business issues. It was a natural progression to share our knowledge and best practices with the Japanese market,” he adds.

According to the participants, our certification program hit a positive chord. “I was really unsure as to whether I wanted to continue my career in HR but after participating in the Employers Group training program, I am 100% sure that is what I want to do,” says Minori Okabayashi, Compensation and Benefits, Human Resources, Coca Cola (Japan) Company Limited.

And Naya Masuko, Human Resources, AMB Japan, had this to say: “The Employers Group Training Program more than met my expectations. It had excellent content and was very well presented.”

Employers Group partnered with Global Daigaku, a leading education and training provider in Japan. The company’s president, James Yellowlees, Ph.D., related his take on the partnership.

“We have been looking for a leading-edge partner to work with us on the development of HR professionals in Japan for many years. We are so pleased to have connected with Employers Group, and look forward to a long-term partnership in delivering their innovative contents in this market and others in the region.”

For EG, the concept took hold when our Mark led an EG team to a meeting in Tokyo in June; the meeting was attended by several chambers of commerce representatives located in Japan from various countries. After our presentation on the merits of certification, the 2-day program was planned.

All this is evidence of more expansion to come as EG interacts with people all around the globe – and it is a good sign that you, our members, will be caught up in the momentum.

Appeals Court Win for EG’s Legal Committee
and for CA employers

Call to Action: Ask the Governor to Veto AB 2716
Sick leave bill harmful to small businesses –
and to the CA economy

Motivate and Retain Employees without
Breaking the Bank

People are the most important asset in your company. No matter how good your product, how innovative your technology or how necessary is your service, it’s the people in your company who ultimately determine your success. Your business is only as good as the people who work for you. That’s why it is important to recognize, promote and reward your employees.

As the big grey cloud hovers over the economy today, it has become very tough for some businesses as their budgets seem to tighten more each day. The reality is a lot of businesses do not have a lot of extra money to spend on employee benefits. They also don’t have money to throw at high-performing employees to keep them engaged and onboard. If they do decide to ply them with monetary rewards, if may turn out to be a “quick fix” instead of a long-term solution. I have witnessed many companies spend large amounts of money on programs to motivate employees, and they seem to fail.

If employers are prepared to invest a little time and effort, they can find ways to motivate employees without lavish spending.

Ask employees what they want
So the first step is to research. Speak to the employees to find out what they want the company to spend money on. This will help eliminate motivational programs that turn out to be unpopular. Be honest with your employees; let them know where the company is financially, and ask them for creative ideas that will really motivate them at work. The company and the employees need to be aligned.
Improve the work environment
The second step is to look at your working environment. Look at how you can improve the working environment for your employees. The office may need a cleaning, a new microwave may be needed, or inspirational and motivating phrases can be posted. It is inexpensive to rearrange working practices, breaks and job roles, but it may just be what it takes to motivate the workforce.

Empower employees
The third step is to empower your employees. Get your employees involved in making decisions and coming up with new ideas. By empowering them, you are creating an ownership mentality. Every employee will start asking themselves “is the work I am doing today going to turn into a good product tomorrow?”

You can create a program where employees spend about 10 percent of their time brainstorming on ideas of how to make the company successful. They can submit their ideas on how to improve company performance. These ideas will be judged by the top executives and the idea that is implemented will be recognized via a personal letter from the CEO as well as highlighted in the company newsletter. If the results of the idea can be measured and quantified, the employee can be rewarded a percentage of the cost savings. Many ideas come from your front-line employees and this would truly create an environment of creativity and improved performance.

Give them the choice
Offer your employees different types of rewards. This is sometimes perceived as having a higher value. For example, one of the choices could be that they can work with Senior Management on an important project, or they can be given the opportunity to learn a new skill. You can also implement a reward point system. Every time they do something well, they will be rewarded points. Employees can cash out these points at the end of each quarter for different types of incentives that they had voted on. Remember, each employee is unique and has a different set of motivating factors.

Recognition
Recognize your staff for doing a great job on a particular project. Do not take them for granted. Being sincere with your employees and saying thank you goes a long way. When you know that your employees have put in extra hours, bring in a couple of bottles of apple cider and congratulate them for their efforts. From time to time, you can also bring some bagels and donuts to start off their day – employees enjoy food!

Treat like family
Employees are seeking a good work/life balance. Employees know they are expected to work hard, but little things do matter. We need to be flexible. Flexibility will not only help retain and motivate employees but it will also help you attract new employees.

As I mentioned, money might be a quick-fix solution but it’s not the end-all for every situation. Many people I spoke to would rather work in an environment where they feel appreciated, but at the same time can still make it to their son’s/daughter’s school function or get extra time to take care of their own personal needs. Implementing telecommuting on a regular or part-time basis, alternative work week schedules, and flexibility to come in late once a month or leave early on a Friday will motivate and create loyalty among your employees.

Remember to think outside the box on how to motivate your staff. Yes, they would like a raise, but they know that companies today are facing tough economic times – and thus, they are more open to non-traditional incentives.

Alternative Work Schedules
One Way to Help Workers Survive the Gas Crunch

It’s all over the media – higher and higher gas prices. These prices, coupled with an increasing employee desire for work/life balance, are causing employers to re-examine work schedules. Perhaps the most asked-about work schedule innovation we discuss on EG’s Consulting Helpline is the alternative workweek schedule, whereby nonexempt employees vote to work beyond 8 hours at straight time in return for a shorter work week.

Detailed rules exist for such arrangements, and in order to pass legal muster, certain major steps are required to implement an alternative workweek.

Non-exempts may accept 10 hour days in a 40 hour work week
Nonexempt employees in a definable work unit (described below) may accept an alternative workweek schedule comprised of not more than ten (10) hours per day within a 40 hour workweek. Those workers who work for companies in the health care industry covered under Wage Order 5 may work a regularly scheduled day of up to 12 hours at straight time. (Note: not all health care-related companies are covered under Wage Order 5.)

No regularly scheduled day may be less than 4 hours. Note, the IWC rule reads: “The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another.”

Overtime
Overtime must be paid at time and a half for all hours above the regularly scheduled hours for that day up to 12 hours. Double time must be paid for all hours in excess of 12. Once the schedule is published, overtime is automatic for work performed on those days that are not part of the regular schedule.

There is one exception. Employers may switch days once a quarter and not be penalized with the “different day” overtime. In addition, the employee may switch days on an occasional basis for personal reasons without the requirement to pay overtime. Lastly, overtime is allowed to be scheduled (if overtime premiums paid) on a “reoccurring” basis, but not on a “regular” basis.

The “work unit”
A work unit is any group of nonexempt employees that is identifiably different according to an objective business factor. It may be a department, a clearly recognized group in a department, a certain shift, location, etc. – the definition is rather broad.

The employees in the designated “work unit” are to vote on the proposed schedule. Before the work unit votes on the proposed schedule, the schedule must be communicated (the number of days, the hours each day). At this point the names of the days are not published. Also published must be the overtime requirements mandated by law, and meetings to discuss must be held.

The secret vote
Two-thirds of the affected group must accept the alternative schedule by a secret vote. Once passed, two-thirds of the group must actually work the schedule. The employer must try to accommodate employees in the group that cannot or don’t want to work the schedule.

The results of the election are to be reported by the employer “to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer.”

Canceling the arrangement
An alternative workweek schedule may be canceled at any time by the employer. The schedule may also be repealed by the affected employees. Employees must petition at least “one-third (1/3) of the affected employees, a new secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule.”

It is important that employers follow their IWC Wage Order regulations when establishing an alternative workweek schedule. The exact procedures you must follow are set forth in the Wage Order. There are 17 Wage Orders in California, and every company is covered by at least one of them. Make sure you refer to the appropriate Wage Order for your company. Improperly established alternative workweek schedules can result in significant long-term pay liabilities.

If you need assistance, contact the Employers Group Helpline or our Reference Library for further clarification or specific questions.

Emergency Action Plans

Floods in the Mississippi Valley and fires devastating large communities in Northern and Central California have reminded us, yet again, of the importance of emergency action plans. Unfortunately, a sizeable number of employers are still lagging behind when it comes to a comprehensive disaster plan that considers all the variables. Below, we've outlined a few of the aspects your plan should take into account – those both obvious and often overlooked:

Emergency evacuations
First and foremost, as with any emergency, the primary concern is to insure the safety of your workforce. If a disaster befalls a community during working hours, the employer must have an evacuation plan in place, or if evacuation is inadvisable, a designated safe harbor. Here at the Employers Group, a committee regularly rehearses what to do in the event any number of emergencies happens. In other words, do not limit yourself to contingency planning for earthquakes and/or fires only.

Phone trees and other plans
If a disaster happens outside of working hours, it is equally essential that HR spearhead means of communicating with company employees regarding work-related issues, as well as assessing the safety and well-being of everyone and their families in general. This usually involves a phone tree (or e-mail tree) where responsibilities to touch base are distributed from the top down, so HR is not solely responsible for starting the communication. Alternatively, the company may designate a number to call (or URL address to visit) that has an automated message updating employees on work-related questions they may have (i.e., is the company operational, etc.).

Telecommuting
As the tragedies of late exemplify, employers can minimize damage to their bottom line by preparing, in advance, for what they will do to remain in business should a disaster prevent access to a work locale. Those employers that permit telecommuting to a limited number of employees may wish to expand the option during emergencies. If employees can access work to keep the company, at the very least, operational during a disaster, they will necessarily mitigate damages suffered to operations. What must remain operational? Which positions serve these needs? Who within these positions would be in the best position to perform the work required? Plan ahead – you'll have far greater issues to face when the disaster happens.

Off-site operations
As with the floods in the Midwest and fires up north, displaced companies found themselves operating out of warehouses and even elementary schools – wherever they could route business operations. Have a contingency plan in place. It may not be possible to predict where you would set up shop, but even if you have multiple locations, have a plan for shifting operations to the other locations.

Employee benefits
Finally, what kind of benefits are you prepared to provide your employees to help them through the disaster? In the event you cannot continue operations for a short period of time, would you continue the wages of your employees and, if so, for how long? Without communicating it to your employees and thereby creating a firm obligation to follow through, answer these questions in advance, as much as possible.

For a discussion of additional considerations, or to bounce ideas off the experiences our Helpline consultants have had drafting these policies, please call the Employers Group Helpline directly.

First Woman Selected to Chair EG’s Board of Directors

Aspasia Shappet, President and CEO of MESVision® in Costa Mesa, California, has been selected as the chair of EG’s board of directors; she is the first female chair in our 112-year history.

Aspasia is one of the few women CEO’s in Orange County, and one of only nine percent of those women who serve on boards of directors in Southern California.

“As one of our board members since 2003, Aspasia has been a passionate advocate for all that we do for our members,” says Mark Wilbur, President and CEO of Employers Group. “With our organizational and service changes over the past year, some of which are still being put into place, she is the ideal chair to see these changes through to fruition.”

In 1993, Aspasia joined MESVision® as COO and CFO, and was promoted to President in 2002; a year later, she was promoted to CEO. She serves on the company's three boards of directors, the board of the National Association of Vision Care Plans, and the Blind Childrens Learning Center.

Aspasia succeeds Rod Hagenbuch, who served on EG's board from 2003 until this year, and as chair from 2006.

It’s Time to File EEO-1 Report

Are you a private employer with 100 or more workers? Or is your organization considered a federal contractor of $50,000 with 50 or more workers? The U.S. Equal Employment Opportunity Commission’s (EEOC) Joint Reporting Committee requires that the Employer Information Report EEO-1, commonly known as the EEO-1 report, is to be filed annually. Also, if you are a financial organization, regardless of size, you are required to report the racial and ethnic composition of your workforce.

Employers in Puerto Rico, the Virgin Islands or other American Protectorates are not to file reports for these establishments. Also, state and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations are excluded from filing. (41 CFR 60)

The EEO-1 final rule states that all covered employers must file the EEO-1 Survey by September 30, 2008. Notification letters to employers who previously filed are usually mailed beginning in July.

The preferred method for completing the 2007 EEO-1 report is the web-based filing system. In fact, if you are filing for the first time, you must first file using the web-based system, which will also establish a login number for your organization. In subsequent reporting years, an employer may request to submit a paper report, which must include the login number, via fax to (202) 663-7185. The EEOC will respond via mail with a paper form for submission.

Employers may not use figures from any pay period to file the EEO-1 report. Employers must file figures from any one pay period between July and September of the survey year.

The employer is obliged to obtain necessary supplies of this form and file its report prior to the annual filing date each year. The employer must also retain a copy of its most recent report for each reporting unit at its facility, or at its company or divisional headquarters, and to make available a copy to the EEOC upon request.

Changes to the report as of 1/1/06
Changes to the EEO-1 report were posted on January 27, 2006. For the first time since 1966, new revisions will be reported on by employers. The race and ethnicity definitions were revised from five to seven categories: one ethnic group and six racial groups. See Changes for the EEO-1, EG Newsletter, January 2006.

Additionally, job categories were modified, resulting in the Officials and Managers category being divided into two subgroups: Executives/Senior Level, which are within two reporting levels of the chief executive officer; and First/Mid Level Officials, which are lower-level managers. The job category modifications more precisely partition management-level employees and provide the agency with greater detail about hiring patterns and the advancement of women and minorities into top-level management positions.

Although employers were required to use the new EEO-1 form in 2007, employers who were not able to resurvey their workforce or chose not to resurvey are mandated to do so for the 2008 filing. The employers may resurvey existing employees from July to September 2008 for the report. Please note that for surveys that were due by September 2006, employers should continue to use the EEO-1 report format from previous years.

When an employer surveys its workforce, the employer must request employees to self-identify which one race or ethnicity category they most identify themselves with. The invitation to self-identify may be requested in paper or electronic form, and confidentiality of the information is critical. All new and existing employees should receive this invitation using the new categories.

As a practical matter, employers should leave plenty of time to collect the data required for reporting the 2008 EEO-1.

By far the most confusing aspect for filers is the multiple establishment requirements. Employers that have multiple establishments must follow the “multi-establishment company specifications.” Where employers are doing business at more than one establishment, employers are required to file as following:

1. A report covering the principal or headquarters office;
   
   
2. A separate report for each establishment employing 50 or more persons;
   
   
3. A consolidated report that MUST include ALL employees by race, sex and job category in establishments with 50 or more employees as well as establishments with fewer than 50 employees; and
   
   
4. A list, showing the name, address, total employment and major activity for each establishment employing fewer than 50 persons, must accompany the consolidated report.

The total number of employees indicated on the headquarters report, PLUS the establishment reports, PLUS the list of establishments with fewer than 50 employees, MUST equal the total number of employees shown on the consolidated report.

All forms for a multi-establishment company must be collected by the headquarters office for its establishments, or by the parent corporation for its subsidiary holdings, and submitted in one package.

For the purposes of this report, the term Parent Corporation refers to any corporation that owns all or the majority stock of another corporation so that the latter stands in the relation to it of a subsidiary.

It is important to remember that planning ahead to survey or resurvey your workforce using the new racial and ethnic categories is part of the new requirements for 2008 if you have not already done so. For further information go to www.eeoc.gov.eeo1survey.

U.S. Supreme Court Rejects AB 1889

Several employer associations (including the Employers Group) sued the state of California over the implementation of statutes created by Assembly Bill 1889 (AB 1889). Those statutes prohibited employers that received state funds from using those funds “to assist, promote, or deter union organizing.” The U.S. Supreme Court recently held that the state statutes were not valid because they are preempted by the federal National Labor Relations Act (NLRA), see – Chamber of Commerce of U.S. v. Edmund G. BROWN, Jr., Attorney General of California, et al (2008).

The California legislature passed AB 1889, which became effective on January 1, 2001(see the California Government code sections 16645-16649). The purpose of the legislation was to forbid employers who received more than $10,000 from state funds from using the funds to interfere with union organizing attempts.

More specifically, the law stated: “It is the policy of the state not to interfere with an employee’s choice about whether to join or to be represented by a labor union. For this reason, the state should not subsidize efforts by an employer to assist, promote, or deter union organizing. It is the intent of the Legislature in enacting this act to prohibit an employer from using state funds and facilities for the purpose of influencing employees to support or oppose unionization and to prohibit an employer from seeking to influence employees to support or oppose unionization while those employees are performing work on a state contract.”

The law placed spending restrictions on any expense, including consulting/legal fees and pay for employees involved in “…an activity to assist, promote, or deter union organizing.” The Court found that the law was not as neutral as it purported to be: “Despite the neutral statement of policy quoted [in]… AB 1889 [it] expressly exempts ‘activit[ies] performed’ or ‘expense[s] incurred’ in connection with certain undertakings that promote unionization, including ‘[a]llowing a labor organization or its representatives access to the employer's facilities or property,’ and ‘[n]egotiating, entering into, or carrying out a voluntary recognition agreement with a labor organization.’”

The Court noted that in 1935 when the NLRA was enacted it didn't include language that specifically addressed the balance between employee organizational rights and an employer’s free speech rights. The issue was left to the National Labor Relations Board (NLRB) to resolve, on a case by case basis, subject to federal court review. The NLRA at 29 U.S.C. §157, notes that: “…workers have the right to organize, to bargain collectively, and to engage in concerted activity for their mutual aid and protection.” And, at §158(a)(1), made it an “unfair labor practice” for employers to “interfere with, restrain, or coerce employees in the exercise…” [of those rights].

Historically, the Supreme Court has recognized the First Amendment right of employers to engage in non-coercive speech about unionization. However, on the other hand, the NLRB continued to regulate employer speech very tightly. Congress became concerned that unions were being treated more favorably, so it passed the Labor Management Relations Act (LMRA) in 1947. Among other things, it added language that protects speech by both unions and employers from regulation by the NLRB. At 29 U.S.C. §158(c) it states: “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.”

The court did not agree with the lower appeals court decision in this case, which found that the California law was not pre-empted because: (1) the spending restrictions apply only to the use of state funds, (2) Congress did not leave the zone of activity free from all regulation, and (3) California modeled AB 1889 on federal statutes.

The Court said: “California plainly could not directly regulate noncoercive speech about unionization by means of an express prohibition. It is equally clear that California may not indirectly regulate such conduct by imposing spending restrictions on the use of state funds.” The Court quoted from one of its earlier decisions, Metropolitan Life Ins. Co. v. Massachusetts (1985): “The NLRB has policed a narrow zone of speech to ensure free and fair elections under … [the] NLRA, 29U.S.C. § 159. Whatever the NLRB’s regulatory authority within special settings such as imminent elections, however, Congress has clearly denied it the authority to regulate the broader category of non-coercive speech encompassed by AB 1889. It is equally obvious that the NLRA deprives California of this authority, since ‘[t]he States have no more authority than the Board to upset the balance that Congress has struck between labor and management.’”

The lower court reasoned that Congress could not have intended to pre-empt AB 1889 because: “Congress itself has imposed similar restrictions. …Specifically, three federal statutes include provisions that forbid the use of particular grant and program funds ‘to assist, promote, or deter union organizing.’” The Court dismissed that reasoning by reiterating its position that: “We are not persuaded that these few isolated restrictions, plucked from the multitude of federal spending programs, were either intended to alter or did in fact alter the ‘wider contours of federal labor policy.’”

The Court stressed that Congress, not the states, “…has the authority to create tailored exceptions to otherwise applicable federal policies, and (also unlike the States) it can do so in a manner that preserves national uniformity without opening the door to a 50-state patchwork of inconsistent labor policies. Consequently, the mere fact that Congress has imposed targeted federal restrictions on union-related advocacy in certain limited contexts does not invite the States to override federal labor policy in other settings.

“Had Congress enacted a federal version of AB 1889 that applied analogous spending restrictions to all federal grants or expenditures, the preemption question would be closer. …But none of the cited statutes [by the lower court] is Government-wide in scope, none contains comparable remedial provisions, and none contains express pro-union exemptions.”

California Employers Support Cell Phone Law

Effective July 1, 2008, the California Wireless Telephone Automobile Safety Act banned the use of a handheld cell phone while driving. The Act prohibits the use of a cell phone while driving unless the driver uses a hands-free device; a minimum $20 fine will be imposed for an initial offense, and a $50 for a subsequent offence (Vehicle Code (VC) Section 23123). For those under 18, the new law prohibits them from using cell phones while driving, even if a hands-free device is used (VC Section 23124). Exemptions to this law include:

• The use of cell phones to make emergency calls to a law enforcement agency, a medical provider, the fire department, or other emergency services agency;
  
  
• Emergency service personnel: these individuals may use cell phones while operating authorized emergency vehicles in the course of their duties;
  
  
• Certain commercial truck drivers: within limits, the law allows the use of push-to-talk two-way radios with wireless telephone that does not require immediate proximity to the driver’s ear. Included under this group are motor trucks or truck tractors that require either a commercial class A or class B license to operate. Agricultural vehicles and tow trucks are also included in this category.
  

Employers are reminded that communication equipment (i.e., cell phones, BlackBerrys, etc.) necessary to conduct business must be paid for by the employer. Where the equipment is used for both business and personal use, the employer is responsible for a proportionate share of the cost.

Based on a survey of its members, Employers Group found that for the most part, employers have or will implement policies and procedures to help employees comply with the law as well as to mitigate possible employer liability. The survey, conducted in June of this year, examined the effect of this new law on the employer community, including employer compliance, cost, and relevance to the employer. Survey results are based on the responses compiled from 271 companies.

Survey highlights

• A majority of employers will restrict the use of cell phones while employees drive on company time: Almost 68% said that their employees will be asked to limit or to stop using their cell phone while they drive during company time.
  
  
• 22% of the companies that responded said that they will ask employees to stop using the cell phone while driving and 46% will ask employees to curtail their use, and encourage them to park before they use their cell phone.
  
  
• The policies reported also apply to employees who are likely to depend on cell – most notably, salespeople. 96% of companies with sales personnel indicated that the new rules also apply to them.
  
  
• The policies did not vary between type of companies – manufacturing, services, sales, etc., and the responses tended to be similar between large- and small- sized companies.
  
  
• The restrictions were somewhat more likely to be implemented by companies with a significant number of personnel who would be affected by the new law. Of this group, 75% of companies would ask their employees to stop using their cell phone, or to restrict its use, while driving, compared to 68% of all companies.
  
  
• “Liability” was a recurring employer concern. Of those companies who expressed a concern with the new law, 33% feared that the new law exposes them to liability if an employee is found using the cell phone while driving and is involved in an accident.
  
  
• Monitoring the new law is a challenge: of those who responded to the question of how they would monitor compliance, 30% will not do so or do not know how. 21% will monitor by reviewing phone records or similar procedures. 15% will rely on the honor system. 21% do not know if they will be monitoring compliance.
  
  
• Regarding reimbursement practices, of those employers with employees who conduct business while driving, 62% will reimburse 100% of the cost or will purchase the equipment for the employee, while 7% will reimburse the employee 60% of the cost; 31% of respondents do not have plans to reimburse the employee for the expense.
  
  
• Regarding implementation of the new policy, 61% of the companies updated their employee handbook with language on the company policy, and 56% asked employees to sign acknowledgment of the company’s policy regarding their use of a cell phone while driving.

Compliance issues for CA employers to consider
California mandates that all equipment necessary for the performance of work be paid for by the employer. Where the equipment is used both for work and personal reasons, then the employer must pay for the proportionate share of the equipment.

When the employee travels in the course of business, the employer must pay both for fuel and the business use of the employee’s personal car. This responsibility can be met by paying either the actual travel cost or the IRS mileage reimbursement rate.

California takes the position that when employees drive their personal vehicles for company business, then any damage to the vehicle incurred in an accident will be the employer’s liability. However, if the employer pays a reasonable mileage reimbursement rate, then liability for the vehicle’s damage will be the employee’s alone. A reasonable mileage reimbursement is interpreted by the state to be the IRS standard mileage reimbursement rate.

Beginning on July 1, 2008 the IRS standard mileage rate was increased to 58.5 cents per mile. It will remain at this rate for six months, until December 31, 2008.

When Layoffs Happen – Helping Employees in Transition

“Sure I know that times are tough in our economy now, but man, I NEVER expected to lose my job in a layoff! I've never experienced this before. I'm stunned. I'm at a loss. I feel cast adrift from an employer whom I've worked very hard for. What do I do?”

Such a lament may be all too common these days as employers struggle to cope with the reality of uncontrolled cost increases and declining business. If your company must reduce its workforce, what are some creative ways to soften the morale impact on both former employees and the survivors of a layoff or reduction-in-force (RIF)?

Outplacement is one approach
Use a professional outplacement firm that would provide office space, resume writing services, and job leads to participants. It is effective, but also expensive—perhaps $3,000 - $4,000 per month per person. These costs can mount quickly even when a small number of employees are laid off. But what about a workshop series that provides understanding, empathy, guidance, coaching, encouragement, job networking skills, job leads and interview skills training for the former employees at a fraction of the outplacement cost?

Consider a career transition training series
Recently, I was asked to conduct such a workshop for a client who had to eliminate 12 staff, including exempt engineering professionals and technical support staff. All 12 were offered the course; however, only six accepted. The workshop consisted of four 3-hour sessions spaced one week apart. To offer such a workshop requires empathy and experience. I have also lost jobs due to downsizing. I believe that experience and understanding of what participants may be feeling are important for the success of such a program.

The first session was conducted within a week of the job loss announcement and was used to introduce each other, share current (not updated) resumes, and most importantly, vent emotions and feelings about sudden unemployment. Participants regarded this time as a stress-relief valve that helped them cope with the many emotions assailing them—disbelief, anger, resentment, shock, sadness, and helplessness. It was a time when they also realized that there was hope, and they were in control of the things that they could be doing,. They offered to help one another by sharing information on leads, job fairs, and referrals. Each person then made a personal commitment to continuing the remaining 3 courses in the series; a commitment to themselves and to each other. This was a valuable reinforcing tool.

The second session focused on identifying the various job search networks that existed in the region and preparing a meaningful resume from participants’ experiences. Participants wrote and rewrote their resumes, getting specific feedback on correct wording, effective expression of their achievements, structuring of the resume and writing an introductory letter. We identified job fairs that were occurring only a few days after the workshop dates, and prepared one another for how to work a job fair, and handle on-the-spot interviews.

Session three allowed everyone to report back on the job fair experience, with two people reporting they found good leads. All participants reported a new sense of relief that they could be successful in a job search, especially since all of them were over age 40 and initially were very skeptical of being wanted by any organization. There was new-found confidence and resolve to continue their searches. One participant reported he had a key interview the next day for a very senior project manager position. We dedicated half of the workshop to helping him prepare himself for the interview, asking him tough questions and letting him learn through his responses. In this capacity, everyone learned from the experience. He returned home that evening and practiced his newly structured approach to presenting his credentials and accomplishments.

Session four consisted of the group getting feedback from the project engineer on his interview experience. He was genuinely pleased with his performance. His confidence, the precision of his word use, and the content-rich nature of his answers so pleased the interviewers that he was complimented on it all! We then wrapped up the session with a series of mock interviews of one another, using the project engineer’s feedback as a real-world learning tool for the others. Participants departed this final session with renewed resolve and optimism.

The beauty of this story is that the project engineer was the hands-down choice for a wonderful job at a great salary, and he secured an offer and acceptance. Most of all, his grateful expression of how the experience had played a major role in his success was sincerely appreciated, and all participants validated the usefulness of this approach to career transitioning after a job loss.

If you are facing a workforce reduction, the cost savings of a workshop compared to outplacement may cast a wider net as to who can be offered practical assistance. Not only will the affected employees be grateful for the assistance, but the remaining employees will know their employer continues to be concerned for its workforce’s future.

Editors note: For more information on this custom-delivered course, please contact Somaly Heng at 213.765.3961. The program can be delivered at any one of Employers Group’s regional offices.

Telecommuting Times –
A Practical Approach to Making it Work

These days, with the high cost of gasoline, employers may suddenly be taking a more lenient view toward telecommuting; however, according to recent statistics, as many as one-fifth of all U.S. workers have been telecommuting at least one day a month for some time. Some companies even staff departments of several hundred employees exclusively with telecommuters.

Initial reservations about telecommuting’s negative impact on productivity appear to have been unwarranted; rather, employers report anywhere from a 4 to 20 percent increase in productivity for those employees who may now capitalize on time they would have otherwise spent commuting to and from work. Employers are also recognizing the more obvious benefits, such as lower turnover rates, improved employee loyalty, and savings on funds traditionally allocated to real estate and related office expenses.

Even employees’ concerns that telework could expose them to layoffs more readily than office workers appear to be unjustified, and personal accounts by decision-makers suggest employers more readily promote telecommuters because they cost the company less money while generating the same (or higher) outputs.

Employee fears aside, the vast majority of employees (4 out of 5 surveyed) state that flexible work arrangements like telecommuting have a positive impact on their perceptions of their own productivity, quality of work, and loyalty to the company. Despite the initial appeal of a telecommuting policy for some, however, there are several considerations – legal and administrative – employers must tackle first.

Administrative considerations
Before addressing any legal concerns that arise, determine which positions within the organization even lend themselves to a telecommuting arrangement. Here are some questions that can help:

• Do any employees report to your offices and then proceed to work independently the remainder of the day or in large segments of time that could comprise an entire day?
  
  
• Do the employees require constant physical interaction with colleagues (i.e., to show a coworker a drawing as opposed to merely explaining its contents) or could they use e-mail, telephones, and facsimiles to communicate the same?
  
  
• Do the employees require constant supervision?
  
  
• Perhaps most importantly, can you measure their output using metrics or other objective determiners to ensure they remain productive outside the watchful eye of a supervisor?

If your answers to the above questions suggest the position is primarily a self-directed one, the job probably warrants further consideration for telework, at least for a portion of the time.

Even if the job does not satisfy the above criteria, can you restructure responsibilities or the department itself to facilitate telework (e.g., consolidate assignments that require an employee’s presence at the office and then rotate employees through the position)? For employees working on extended projects, are there phases in those project cycles when employees could perform work from home? Will the removal of employees from the office allow you to consolidate workspace and/or equipment? Will such a restructuring permit you to streamline or even downsize office support staff?

Legal issues
There are additional considerations, several of which you should resolve with your insurance provider(s) and your legal counsel, before finalizing your telecommuting policy. One obvious concern is what would happen if the employee is injured while working from home. Would such an injury trigger workers’ compensation? It may.

Require the employee to dedicate a space where all work will be performed and impose on them the obligation for upkeep of that area. If you are subject to Cal/OSHA’s record keeping obligations, the regulations state that your employee’s home office is not a separate establishment for Cal/OSHA Form 300 purposes, but you must record telecommuters’ illnesses and injuries on one of the Form 300s you maintain. Cal/OSHA will inspect an employee’s home office in response to a complaint lodged against that particular workspace.

Privacy is yet another concern employers should address before launching a telecommuting program. It goes without saying that employees have greater expectations of privacy at home than they would at your office, and if they wish to utilize their own computer equipment, there may be additional complications.

Other issues that may require consideration are whether the employee will use company equipment or personal equipment, such as computers, BlackBerrys, etc. In both instances, certain legal questions need answering, and it is best to consult with your attorney.

Finally, you will most likely want to require the employee to sign off on a document outlining the terms of the telecommuting relationship. The document itself should be reviewed by your counsel. Further, mention of the telecommuting policy in your employee handbook will likely contain little more than a requirement that all requests for telework be in writing and submitted to Human Resources.

Editor’s Note: We have updated this article originally written by EG Senior Consultant, Mark Nelson, J.D. He recently moved out of California and is no longer on staff.