How we got here

I have great faith in our newest working generation’s sense of community, fairness, intelligence, and connectedness.  I hope this trust and faith is not misplaced because the American worker needs help.  U.S. business and industry need the same type of help, because people as a business in not mutually exclusive of great profits or a booming economy.  In fact our history will support, when people earn a share of profits through higher wages and benefits, profits and the economy booms.  Only during the last decade+ was a booming stock market not the result of a booming economy that benefited all. 

Wall Street was freed to operate without oversight and regulation beginning in 1999, with passage of the GLM Act repealing parts of the Glass-Steagal Act of 1933 and the The Bank Holding Act of 1956 (acts establishing consumer protections and oversight of banks, investment bankers and insurance companies). The stock market soared to a level unimagined.  Of course it was a false boom, benefiting very few and collapsing just as it had during the run up to the Great Depression.  Our economy is recovering very slowly, but masking this recovery is another booming stock market without a booming economy, fueled by the same Wall Streeters doing the same things and producing profits for the very same few. 

They produce profit from manipulation of pricing and money and produce nothing, not products, manufacturing, services, good consumer wages or jobs.  They care nothing of worker’s rights and laws.  They care nothing of employment or unemployment.  They care nothing of the economy. They care only about their own profits.  They only care about the law when they get caught.  Furthermore, Wall Street’s Banks, Investment Banks and Insurance Entities recently found it is O.K. to illegally make $Trillions. After putting our economy on the brink as well as a host of retirement funds, cities, states and even other countries, when they had to pay up, the American taxpayer got the bill and their fines and penalties so far have been a paltry $2Billion!  Not one, C-level executive has ever been charged or prosecuted!  If you seldom, or never, get caught it is simple finance:  paying fines, some back amounts and legal fees, is just cheaper than paying what the law requires and demands along the way.  Sound familiar?

Again, we are beginning to see these same Wall Street results….high prices for commodities necessary throughout the world….oil, energy, gold, copper, corn to name just a few. There are no shortages, just perceptions. Wall Street does nothing to produce it and nothing to protect it.  They do nothing but trade and manipulate its value in a game just like a casino.  And, like all gambling, few players win, most loose and only the house, those controlling the rules, win long term!

"Merchants have no country.  The mere spot they stand on does not constitute so strong an attachment as that from which they draw their gains."

--Thomas Jefferson to Horatio Gates Spafford, 17 Mar. 1817

Much like Wall Street’s view of regulations, for 30+ years employers have made the case for the related notion (started  by the Automobile industry) that worker rights, unions, wages, benefits and legal requirements (laws) are the root of their profit problems and getting rid of them the solution.  If this were true why do UPS and Southwest Airlines (to name but a few) remain profitable and successful EU nations and Canada remain competitive with the highest employer/employee taxation rates and the most generous employee protections, wages, benefits and security in the world?  If this were true why did the greatest economic boom in U.S. history occur during the most active period of Labor and Wage and Hour legal activity - the late ‘40s through the ‘70s?  

Our country’s greatest competition is not with China, Bangladesh, Myanmar, Malaysia or any other Low Cost Country (LCC). We are competing with and against our self.  We are in competition with conflicting national business, legal and people politics and wisdom.   We are in competition with policies and incentives rewarding employers for working and manufacturing outside our country and taking work, business, profits and taxes away from our own nation benefiting all citizens. We are competing with our own sense of national identity vs. those of the Banks and Wall Street 

Eventually the world will run out of, and is already running low on, low labor cost countries.  Long shipping distances, rising fuel costs, the needs for safety, security, health, educated workers, employees who work ethically with efficiency, dependability and reliably, plus a resurgence of a certain nationalism (Made in the U.S.A.), have already begun to outweigh the desire and need for simple low labor costs.  As the economy and employment recovers the need for the disposed U.S. worker will create a paradigm shift in people as a business, not seen in the U.S. for decades.  In fact it has already begun.  Most employers don’t understand this yet, because theirs is a short sighted strategy of profit not longevity and people. 

Just as the army goes on its stomach so industry and business goes on its people!

Next installment:  Abbreviated re-postings of the “Black Hole”

People as a Business Cycle.

The issue of "People as a Business" has historically cycled. However, never in all my professional life have I observed a time when so many work environments are so poisonous and unsupportive of their own employees or those looking for work.  In mastering the technical, metrics and efficiency, it seems we have destroyed the positive work culture.  Most of the time HR supports and leads these efforts.  I now believe they are inversely correlated.

Today we are witnessing the resumption of a battle pitting fundamental employee legal rights and fair treatment against dereliction of duty in federal enforcement and the apparent willful disregard for federal and state employment laws by employers.  More and more employees are finding a voice and speaking out.  Many are demanding union representation because they are alone with no one to support them!  Where else can they turn?

Employees can no longer count on support from HR, who keeps calling for a “seat at the table”.  HR apparently wants to be a part of the anti-people and negative work culture policy decision making, right alongside the business leaders and C-suite executives.  The “business partnership” HR constantly strives to attain and/or justify, must come with an actual say in the day to day business decisions affecting its people.   If not, it is as meaningless as voluntary compliance.

HR must be the partner that guards and facilitates the fair, legal and ethical treatment of its people, and thus protecting the company.  They need to stop rubber stamping so-called business decisions adversely affecting their employee populations.  If HR acted as a people guardian we wouldn’t be seeing 70-90% FLSA non-compliance, skyrocketing employment legal complaints and work environments reinforcing lack of engagement, poor performance, bad morale, “The Black Hole” or bad management and practices.
   
After witnessing employer’s treatment of their parents and grandparents over the last 20+ years I believe it will be our newest generations of workers who will insist on fair and legal employee treatment and federal employment law enforcement.  Pre-boomers, Boomers, Gen X and early Millennials must bear a majority of the responsibility for today's current anti-employee culture.  By not speaking out and not promoting the positive, legal and protected work culture, over the last 30-40 years, the work place has slowly degraded to its present state.    The newest workers will not tolerate the same treatment and don’t.  Unlike those in their last working years, unable to retire and fearful of being unemployed, the newest generations have little fear, don’t trust employers and go public. They will not work as their parents or grandparents having seen how that work and loyalty was rewarded

I don’t think this movement will be going away.  The current administration seems to have found their position and has been marching legally on those who violate employee law.   However, if our recent history is any indication, it will not be long lived. We can only hope fair, legal and ethical employee treatment will again become more normal because workers will demand it. We know from our working history and the last 30+ years it will not be given! The question is who will represent them?  Will it be HR and the employer, a private employment legal firm, a union or the government?  It is ours to choose.

I am firmly convinced companies valuing people as their business are already winning during this economy.  Others who come to embrace people as their business will win the coming battle for quality talent, products, service, customers and profits.   I am also firmly convinced our nation’s health, economy and future depends upon it.  I know mine does.

Next Installment:  How we got here

U.S. worker protections in today’s workplace

In talking to companies, executives, attorneys, unions and workers I have heard the strangest stories, both hilarious and tragic, but true!  These endless perplexing stories are so universal with legal results so predictable I have concluded current training and education is rendering most companies willfully, civilly and/or criminally ignorant and negligent!  The DOL understands this.   A booming private employment law legal niche knows this as well.

If HR management does indeed know better, but is not protecting both the employee and the employer from willful violation of the law, it probably follows they are either ignorant of the law, fearful of their own job security or both.  If not, they have become part of the problem not the solution.  Just look at the long litany of Walmart settlements, and potentially the nation’s largest class action suit moving forward this year with estimated liability into $Billions.

Three very recent true stories will give impact to my points:

1)      A company attorney for a Fortune 100 company received a phone call from a degreed and certified HR Manager of 5+ years regarding the classification of a group of workers as non-exempt.  The HR Manager didn’t want to classify this group of salaried people as exempt because they (and their boss) didn’t want to pay them overtime.   They asked for help in reinforcing this position (making the case) and keeping them non-exempt to avoid overtime payments! (If you need this explained, drop me an email.)

2)      Another Fortune 500 employee, after years of working the same job with the same title and performing the same functions, was told, after a careful review of those functions, they were going to be reclassified as salaried non-exempt and would be paid overtime beginning on a future date.  Further questions and answers indicated they would not be paid retroactively.  Although they were not intimidated or threatened in any way, the employee decided they would not run the risk of being fired for questioning management regarding past overtime pay.  (If you need this explained, drop me an email.)

3)      When a very large privately held company asked for help in determining a “best” course of action to address problems in their handling of employee problems and complaints, they were asked why they thought they had a problem. They explained they had received notice of a DOL class action suit regarding violation of the FLSA in an overtime pay complaint, AND, they had been notified the results of an EEOC investigation and the EEOC was filing suit for sexual harassment and violation of the equal pay for equal work statutes.  When asked what policy or procedure the company had in place offering safe harbor to address employee issues and problems the company answered:  “Safe harbors are handled by the Benefits Department and those overseeing our 401K plans.” ??? (If the reference eludes you, drop me an email.)

These stories are from large companies who can afford the best information, training and legal advice available.  What is occurring within smaller companies is far more disturbing from a worker and employer liability standpoint.  These issues are being investigated, tried and settled every week!  2012 may be a $Billion+ settlement year representing the continued 30 – 50% annual increase in DOL and EEOC claims and settlements over the last 10 years. 
Many ask, "Why is this happening now?"  The answer is simple.  It isn’t new! It has been going on for decades! However, civil suit vs. federal enforcement is the relatively new wrinkle during the last 20+ years. 

Civil law suits became a private legal gold mine when preceding U.S. administrations deemed enforcement unnecessary, a low priority, refused to adequately fund enforcement and/or appointed department heads sympathetic to non-enforcement policies. Without federal enforcement individual workers had to and began filing civil suits.  Most civil suits are settled out of court, secretly, non- publicly and with non-disclosure agreements.  Civil judgments against employers usually take place just as quietly and may even get sealed.  They are just now becoming more visible because government judicial and departmental proceedings are a matter of public record!  Defense costs, judgments and publicity from federal legal enforcement of employment laws and for back wages, fines, possible criminal actions and the corresponding loss of reputation and image through bad press is a business’s worst nightmare.

The appearance of “newness” for these actions has also been explained as the result of unprecedented unemployment giving former disgruntled and laid off worker’s the freedom from fear and time to file complaints.   The employer-employee atmosphere created by the preceding decades of federal non-enforcement, worker abuse, neglect, unfunded pensions, non-communication and disposability is listed as a related reason we are seeing the visible rise in employment cases.  Another is our newer workers communicating endlessly, texting and tweeting anger, frustration, problems, complaints, solutions, legal opinions and perceptions to virtually anyone.  Consequently, legal employment questions and information is simply more available than ever before, instantly.

Recent state administrative and legislative actions in Wisconsin, Michigan, Indiana and Ohio, have also pushed this 30+ year employee rights trend into the spotlight.  Supported by all generations working together and organized through today’s lightning fast communications, rallies, union meetings and recall petition efforts have culminated in examples of what successful and visible employment rights protests can achieve. As of this writing 13 other states have followed a similar pattern.  It also serves as a glaring example of what fair, ethical and legal treatment of working populations can hope to avoid! 
Next Installment:  Why we got here

Why we have employment laws and where those laws stand today

I believe we became great nation with great opportunity because we are a nation of laws.  Our nation fought for and our forefathers died to overcome tyranny and oppression. As a result our founding fathers put in place laws insuring what they experienced under England, the Church of England and the King’s rule would not be visited on our nation’s citizens.  Over the last 75 - 100 years laws giving workers legal protections and redress have been enacted in the same way our criminal codes protect citizens, with legal enforcement by prosecuting violations and crimes against workers.

Previous generations of workers fought and died to have laws enacted to protect future generations of workers from experiencing what these previous generations had endured at the whim of business in their quest for greater profits.  They include: a minimum wage, overtime, qualified salaried overtime, equal pay, pay for time worked, a work place free from discrimination and harassment, protection from retaliation for complaining and/or filing suit regarding these legal concerns, are just a few.

The right to organize, join a union and have representation has also been won over this same period of time.  Union actions and bargaining, not legislation, have resulted in workers receiving healthcare benefits, lunches, breaks, holidays, sick leave and vacations.  These benefits were initially not legally protected.  However, many (not all) of these benefits have been adopted by companies, state government employment, federal employment itself and many now are protected by state  laws.  These are just some of results all workers enjoy in the U.S. from long labor law fights and bargaining. 

Laws are meaningless if they can’t be or aren’t enforced.  I wish voluntarily compliance worked, but it does not and never has.  This is because voluntary compliance does not work universally.  There are always those who want the edge, an advantage, to not play by the rules or will simply ignore law, spin their view to appear as if they are complying and go on about their business as if everything is fine….This is not much different than the obviously guilty suspect denying being any part of the crime because they got “caught”, when they are clearly guilty, and still plead “not guilty” in court.  The same can be said for company rules and regulations.  They are meaningless without a clearly stated policy and enforcement of those rules should they be broken.

A 2011 U.S. Department of Labor (DOL) report estimated 70+% of businesses were not complying with the Fair Labor Standards Act (FLSA)!  Private lawyers and legal firms handling employee complaints of employment law violations estimate non-compliance and willful/purposeful violation of DOL, FLSA, and Wage and Hour Laws at 90+%!!!  This means part of company profits have been derived from the illegal treatment and payment of employees.  This is an ongoing crime against workers and against their companies by those who perpetrate it! 

This means the vast majority of our country’s business and industry are ignoring hard fought and basic fundamental worker’s rights and laws!  Employers must believe these laws don’t exist, can be ignored or don’t apply to them or, or worse, don’t know they exist.  This may be because consistent federal enforcement has been absent for over 30+ years, leaving only voluntary compliance.  Employers constantly tell workers these laws are misunderstood or they don’t exist at all. 

It may be these laws are not understood by employers and/or are purposely misstated or denied. Whatever the reason, ignoring the law has simply become more cost effective than complying.  If you seldom, or never, get caught, it is simple finance:  paying fines, some back amounts and legal fees, is just cheaper than paying what the law requires and demands along the way.

There has always been company management that ignored law.  However, I am not aware of any time in either my work history or the last 75 years of U.S business history when 90%+ of all business ignored the Law! Worse, a huge segment of business and HR management doesn’t seem to know or understand they are violating the law, or why and what they are in violation of!  Regardless of the employee’s legal right to question and sue employers regarding protected employment issues, past non-enforcement has been interpreted by employers as the right to do as they please, up to and including firing employees who question employer’s illegal practices. 

Legally, this is retaliation.  Employees are protected from such actions potentially causing fines and damages to double or triple!  An employee’s rights are further obscured by various “at will” or "right to work" laws in effect in 28 states, leading many employers and employees to think employees have no recourse.  Nothing could be more untrue!  However, these laws obscure the employee's true federal legal rights and employers believe, even mistakenly, employees have no recourse.

With our economy just stumbling along, few will risk being laid off by complaining about their pay, working conditions or treatment.   They simply won’t risk being unemployed and who can blame them.  Realistically, legal action, after being terminated, can take years to resolve and will not pay the mortgage, rent, insurance premiums, buy clothing or put food on the table.  Most workers have little knowledge of their legal rights.  Furthermore, employees simply do not know of their legal options through those federal agencies charged with enforcing the law and protecting workers. Sadly, their own government has caused this disconnect through lack of activity and enforcement, on purpose!

Next posting: Where U.S. workers stand in the today’s workplace

About me and People as a Business

First, a little about me.  Why I'm writing and where this comes from.  (part 1 of 4)

 Although born in the Midwest, I grew up in the Northwest hiking, boating, fishing, running and water skiing. I started playing baseball, the violin, chess and poker at 4.  I also played a lot of neighborhood basketball and football as I grew up.  I took up golf when I tried out for the high school golf team.  The coach and team took pity on me, making me the first alternate (# 6 on a 5 person team) and I continued playing into college.  I also boxed in college, but quit in my early twenties because I had difficulty finding a coach….creeping up a weight category and getting pounded a few times may have also contributed.  It might also answer why I got into HR – I like punishment?!   I switched from the violin to the guitar as a teenager and still play.   As time allows, I still play ball, golf, fly fish and fish. 

I am one half of a pair of 2 sets of brothers born 20 years apart to the same parents.   We had a fearless supporting protective stay at home mother and our father was the National Director of Personnel (Human Resources) and Industrial and Labor Relations for Todd Shipyards and retired during the ship building industry collapse of the ‘80s and ‘90s. He chaired a dozen large Benefit Trusts into his 90s.

For utter lack of good sense, as mentioned previously, I somewhat backed into Human Resources and the Talent and People business.  As silly as it may sound, I never considered this following my father’s footsteps.  However, because of this, some say I have an HR pedigree.  I would like to think I acquired or inherited my father’s gift for never ending curiosity, a genuine interest in business and almost everyone, relating and communicating with people from every walk of life, an easy sense of humor, a genuinely happy disposition coupled with laser like legal and business sense, wit and a burning passion for championing people.  I know I inherited his unusually intense people as a business outlook.  So…I can only hope it is a pedigree. 

I fix things:  cars, toasters, washing machines, clocks, boats, outboards, fishing reels, houses, holes, decks, slivers, burns, cuts …. I believe most things are fixable, not disposable. I have been doing this since I was 4 when I took apart a wind up alarm clock and put it back together.  To my mother’s amazement, it worked…even though a part was left over! I remember the incident and wasn’t surprised it worked! (I must have been very busy in my 4^th year.) I did the same with my first automobile engine at 16, with a part or two left over, it ran perfectly! 

People I have worked with describe me as a real thinker.  Are there fake thinkers?  They will also tell you I never give up and I can fix anything.  I agree.  I feel the same about business and people; they are fixable, not disposable… except, I can’t fix people (like a psychologist or fixing a broken clock).  I can only give them the tools.

I also fix companies.  I have help found, developed from scratch, grown, merged, acquired, transitioned, turned around, sold and gone through 5 IPOs, 8 public to private transitions with 50+ successful M&As.   I design, develop, fix, retrofit or overlay cultures, policies, procedures, brands, HR, Talent, People Services, recruiting/acquisition, manufacturing, flow, processes, profits, sales, shipping, warehousing, HRMS, POS, ICS, supply, logistics…but, I can’t fix top leaders.  I can show, tell and demonstrate what owners, C-levels and boards need to do to demonstrate trustworthiness to their employees to get their people engaged, productive, happy (well relatively, it is just a job to many), aware, valued, trusted, team oriented, cheer leading, profit oriented and motivated.   But, unless leaders are people motivated and oriented and/or truly want to change to people as their business, the changes will be cosmetic not structural… I can’t fix leadership….

I like to win but don’t love winning to the exclusion of enjoying the game.  I’m not saying I like to lose either.  I simply admire and appreciate a job well done, a strategy well designed and played, even when out maneuvered, out played or beaten.  It becomes a life lesson. However, I am very hard on myself when my own mistakes cause a loss! Since I have made a lot of mistakes one could say I am full of life lessons.

I became and still am a Human Resources/Talent and People Exec. Along the way I added retail store operations and management, hotel hospitality, cruise lines, consumer manufacturing, a diversified array of electronics, industry, services, real estate development and the warehousing, logistics, distribution and fulfillment supporting large retail.  During this journey I have been so very fortunate to have worked with the very best. 

As a result I have a unique insight into how the not so very best, to the terrible, actually appear.   When compared to the accomplishments of great companies, inspiring great trust and attracting and developing great people, poor work cultures are actually disconnected from the supportive people culture that drives sales, profits, develops longevity and retains the repeat customer.   In fact these poor cultures reinforce lack of engagement, poor performance, bad morale and bad management. The worst part is they just don’t know it or, more tragic, don't care!

Next installment:  Why we have employment laws and where we have gone.

Is Your Applicant Tracking System (ATS) or Resume Scanner Legal?

Recent highlights from the EEOC are not for the naïve or ???.  2012 “EEOC Hiring Issues  report notes that the EEOC recently held a series of meetings to examine the impact of certain hiring practices on protected groups….. Recent commission-initiated litigation also indicates this issue will remain among the forefront of the EEOC's systemic litigation agenda," …

To comply with certain federal applicant tracking requirements many companies determined the most cost effective process was an ATS (Applicant Tracking System).  Even small employers can access one now.

An ATS also contains the ability to scan resumes for key words and phrases, the employment application and self- identification of sex, race, veteran status, handicap, etc.   The ATS is usually the first candidate-company interaction ….but…. the most impersonal, unforgiving and possibly the most prejudicial format ever utilized.

An ATS may help comply with legal requirements; however, the ATS has also eliminated the human cognitive ability to compare, reason and interpret a resume’s contents.  ATS have a number of very serious flaws leading to potentially illegal recruiting presumptives.   Boomers used to call it GIGO – garbage in garbage out.

A job description may be used to set up the key words and phrases the ATS program uses to scan resumes, however, most large ATS do this automatically.  Unless the correct key words and phrases fields are populated (entered), the resume scanning results will be biased and inaccurate resulting in un- or under-qualified applicants!

Company and industry cultures develop their own unique sets of descriptive words, acronyms and phrases.  If a  job description or your ATS uses key words like: analyst instead of engineer; create instead of design; HR instead of People or Talent (or vice versa); international vs. global; die not  dye or… any list of functions without cross over synonymous key words or phrases,  most qualified people will NEVER pass through and be selected for interviews. 

Furthermore, most company ATS stop looking (scanning) when a predetermined number (e.g. 20) of “qualified” resumes are attained - “garbage in (definition) and the garbage out (un- or under- qualified candidates)”.

This impersonal and GIGO effect is also a big part of the “Black Hole” I and everyone, including employers, talk about.  However, there may be a more serious problem.  How you manage your ATS may be blatantly illegal!

If the job board, career site, social network or sourcing methodology disproportionately excludes qualified candidates, experience and/or entire classes of candidates, protected or not, discrimination is at work.  Unless bonifide occupational qualifications (BFOQ) exist for these errors your company’s ATS excludes and discriminates. 

Regardless of your AAP (Plan) or AAS (statement) if your ATS is excluding, unintentionally or on purpose, you are excluding and discriminating.  This affects the company’s brand reputation and company profitability!  But, Wait…There’s More!  This is potentially a BIG expensive legal problem!

Each ATS user is responsible for their system’s parameters, definitions, descriptions and results!  The same questions and statements can be said of outside recruiter’s and recruitment firm’s (RPOs) methodology. 

Just because these tools are used and their use expanding does not mean they are being used legally.  Just because there have been no suits, judgments or precedents (yet) doesn’t mean these tools are not biased and discriminatory.  What liability does the ATS supplier carry?

Software lacks the ability to compare, reason and interpret what isn’t stated or implied.  Do you know if what your company is doing is legal??? Is your lack of oversight jeopardizing your firm, company or client?

We are seeing rumblings (candidates) and EEOC/DOL investigations following 8-10 years of legal non-enforcement.  Determining the bias, exclusion and discrimination effect of technology is only a matter of time.   Both federal departments and private employment law practices are just now starting to look because of the perceived discrimination against mature (protected) and unemployed workers (I believe soon to be protected or incentivized for hire).