How To Be A Complete D**k During a Deposition (Google-Style)...

Who here has every been the subject of a deposition?  Who here has ever acted like jerk during a deposition towards an arrogant attorney from the other side?  

Great!  It's not just me.  Just one more thing we have in common... Page

A young HR capitalist was once the subject of a deposition featuring an arrogant, condescending attorney on the other side.  The young HR capitalist reacted in such a negative way that the attorney on his side had to call for a break and counsel the young HRC to stop being a d##k to the other side - even though they had it coming.

Favorite plays from the deposition playbook of mine the young HRC included -

--only answering questions in yes/no format when the question clearly called for more...

--answering questions framed in a negative tense (so you don't believe that manager...) "yes".  Because in my mind I'm saying yes to your statement, not going with the informal flow.  This is a formal event, right?

--not giving enough details on process because I can't clearly define it as it works a variety of ways - although there is a certain way it's supposed to work, but you didn't ask me that, did you?

No wonder that attorney called for a break during the young capitalist's deposition.

That's why the notes below from a deposition of Google co-founder Larry Page are so fun.  Page was recently deposed by attorneys representing Uber in a lawsuit filed by Google related to the allegation of stolen IP from self-driving car company Waymo.  Take a look at the notes below from the deposition Business Insider and see my notes in brackets and all caps:

----------------------------------------

 

The transcript is full of examples of Page responding tersely to questioning, such as this exchange:

Uber: Google invested in Uber, correct?

Page: Yes.

Uber: Do you recall when?

Page: My answer is yes. (PRO MOVE - JUST ANSWERING THE QUESTION YES/NO.  DID THEY WANT MORE? SURE, BUT YOU ANSWERED THE QUESTION.  SUCKS TO BE THEM)

Page said he wasn't familiar with how Google stores source code:

Uber: Do you know the way that Google typically retains things, like source-code materials and design specifications, and things like that?

Page: Yeah, I'm not that familiar with how we do that.

Uber: Is there an online repository, or do — do you even know that?

Page: I mean, there's some code-based repository thingy.  (THE SENIOR LEVEL "THINGY" OR "DOHICKIE" REFERENCE.  WELL PLAYED)

And this feisty exchange:

Uber: You're not familiar with the details of the trade secrets that are at issue here?

Page: Yes. (ANSWERING A QUESTION CALLING FOR A SIMPLE NO WITH A YES. IT'S NOT LARRY'S PROBLEMS THAT THEY PHRASED IT IN A WAY THAT HE COULD HAVE FUN WITH. "THAT'S CORRECT" IS BORING.  "YES" IS MUCH MORE FUN)

Uber: You don't know, for example, what the trade secrets are that Uber allegedly misappropriated?

Page: No, I do not.

Uber: Whenever it was that you learned — let me make sure I'm clear on this. You don't remember, sitting here today, when you learned or how you learned that Uber may have misappropriated Google or Waymo trade secrets. Is that right?

Page: That's correct.  (MISSED OPPORTUNITY - HE COULD HAVE SAID YES)

Uber: And you don't remember how you learned?

Page: I mean, that's correct, yes.

Uber: Did you authorize the filing of the lawsuit against Uber?

Page: I mean, I'm certainly aware of it, yeah, and then allowed it to proceed, I suppose. I'm not sure I authorized it. I'm not sure that's the right word.

Uber: Well, could a lawsuit of this magnitude be filed without your consent and approval?

Page: I mean, I guess I'm not — I'm the CEO of the company — parent company of Waymo, and Waymo operates more or less as an independent company.

Uber: Is Waymo authorized to file a lawsuit like this on its own without even consulting you?

Page: I mean, I don't know all the details of that.  (I'M FLYING AT 100,000 FEET PEOPLE.  YOU REALIZE I COULD BUY YOUR FIRM TODAY, RIGHT?  I'M NOT TALKING ABOUT GOOGLE BUYING IT, I MEAN ME PERSONALLY)

---------------------------------

Pros moves all the way around.  Holla if you've ever been a barrier to a successful deposition - as the actual subject of that deposition.


VIDEO: How Sleazy Lawyers Trap HR Pros in Depositions...

If there's one thing HR Pros hate, it's taking on unnecessary risk.  After all, you're the one that thinks about legal things, and more often than not, you're the one left to answer for what happened when the lawyers come in.  Could that by why there's so much CYA going on in our profession?

One of the things I've never thought about in my years writing as an HR pro is how lawyers on the other side (i.e., the ones that are suing your company) approach a deposition. That's why this post by John Hollon over at Fistful of Talent is a must share.  John found a piece of video gold from an employee-side attorney that gives the playbook on his general game plan to take down HR pros in depositions.

That's right - the complete game plan on how he's going to circle around and trap you, formatted neatly in 5 things all layers should do when taking a deposition from HR. Watch-better-call-saul-online

I can't share the video since it's hosted by the firm and not on YouTube, but below is John Hollon's rundown of what the video says. Click through to see the video and also see John's analysis as a non-HR pro who's covered our industry at a high level for years:

Yes, I think HR would love to see how employment attorneys plan to wring information out of them.

In the video, Lawrence Bohm talks about the five (5) things lawyers should do when taking a deposition from HR:

  1. Get the Goods. From Bohm: “Instead of focusing on the bad things your client allegedly did, always start your deposition with the human resource professional, to have them point out the good things that your client has done. Have them go through the performance evaluations were they talk about your client doing a good job. Have them explain that putting an employee as “meets” or “exceeds expectations” is an indication that the employee is doing a good job. … Make the human resource professional agree with you on the record about the good things that your client did to contribute to the workplace.”
  2. Paper Policies. From Bohm: “Almost every workplace has policies but they don’t follow them. This is a gold mine for HR depositions. … Have the human resource manager confirm that these rules existed; and then have the human resources manager confirm that the rules were not followed. Then point out in a kung fu fashion that these rules could have been followed, but somebody made a choice not to follow the employer’s workplace rules.”
  3. Core Values. From Bohm: “The human resource professional more than anybody else in the business should know what that business’ core values are. Core values are really important to juries and HR should know them. If they don’t know what the core values are, what an amazing testimony you get when you ask the person in charge of 1000 employees, “What are the company’s core values?” and they look back at you say, “I don’t know.”
  4. “It wasn’t me!” Syndrome. From Bohm: “Take advantage of the “It wasn’t me!” syndrome that seems to plague every human resource manager I have ever met. And it’s because it usually is true! The human resources department is trying to keep these managers from doing very stupid and malicious things. And when the case happens where they couldn’t stop management from doing that stupid thing, the human resources professional is always ready to tell you under oath, “It wasn’t me!” You want to take advantage of that finger pointing.”
  5. Prevention. From Bohm: “This is the kryptonite of every human resource witness I have ever deposed. It’s on the subject of prevention. This is your ultimate kung fu power. Talk about what the human resources manager could have done, should have done, or did not do, to prevent the illegal conduct from happening in the first place.”

The bottom line to this other than it feels sleazy to everyone on our side?  You can't protect yourself from all of this, but awareness of what the game plan is by you can raise your awareness and probably save you from looking like a total moron - because you're not.

Can sleazy lawyers still take what you say out of context?  Of course - but when you're forced to give details that make you or the company look bad, being aware of what the other side is after can ensure you get context into the record of the deposition.  

And getting context into the record is something that might save your reputation - or job.


Alleged Pay Discrimination at Google Makes Marc Benioff and Salesforce Look Amazing...

Back in late 2015, I reported on proactive moves by Salesforce to do pay equity increases across its workforce to eliminate any and all gender pay issues, job by job. Here's a rundown from the post:

"In a panel at a conference organized by Fortune last week, Marc Benioff, the CEO of the cloud-based software company Salesforce, said that he recently ordered a review of all 17,000employees’ salaries to see if female employees’ pay was in line with those of male employees doing similar jobs. According to Fortune, Benioff said that the company is spending about $3 million extra this year on its payroll to make these adjustments. “We can say we pay women the same that we pay men,” he said the conference. “We looked at every single salary.”

Salesforce has declined to clarify the $3 million figure or provide further details—the size of the average adjustment, how many employees saw their salaries changed, and how they reacted—but is going to put out a report with more information next year."

At the time, I thought the move was brilliant, as it changed the conversation about workforce diversity to one of workforce equality - an equal goal that once achieved, was bound to change the narrative related to how much slack the world was going to give Salesforce for having some work to do on the diversity front.

Well, here's another reason to go for pay equity if you're a company like Salesforce - to keep the DOL from knocking on your door and playing hardball, like they just did at Google.  

"In their efforts to bring wage equality to Silicon Valley, government officials have accused one of the tech industry's anchor firms of large-scale gender discrimination.

According to the U.S. Department of Labor (DOL), available data suggests that women who work at Google suffer from "systemic compensation disparities" compared to their male peers. As part of an ongoing lawsuit, the DOL alleged that the company, a frequent recipient of federal contracts, has violated federal law by discriminating against female employees in the salary department.

In recent years, Google has reportedly been well averse to sharing such data with the DOL, which seeks to compel the company to disclose wage and other information under federal employment laws. Testifying in San Francisco on Friday, DOL regional director Janette Wipper told the court that the government had uncovered "systemic compensation disparities against women pretty much across the entire workforce" in its investigation of available company data from 2015, The Guardian reported."

The fact that Google's taken this DOL charge show's how brilliant the 2015 move by Salesforce and Benioff was.  Not only did they change the narrative related to diversity (important, but so it equality, people!), they didn't get sued.

Did Google have the money to do something similar to the Salesforce move on pay? Of course they did. But leading means you're proactive, even when you don't have to be.

Well played, Salesforce.  Good luck, Google.  You'll likely end up making the same equity increases Salesforce did, but it will look forced and you won't get credit for leading.


Illinois AG Sends Age Discrimination Letters to Job Boards, Protects Rights of 81 Year Olds To Apply For Jobs They Don't Want...

In case you missed it, the State of Illinois Attorney General is in the news for some premium PR/saber-rattling, centered around the fact that job boards like CareerBuilder and Indeed are trying to exclude older workers from applying for jobs they don't want.

Yes, the world has problems. This didn't make the list of 99 referenced by Shawn Carter.  Still, there's the Illinois AG, doing her thing.  More from the rundown on SHRM.org, notes that follow each section are my color commentary:

Illinois Attorney General Lisa Madigan's office alleged in letters sent March 1 that older job seekers are deterred from using resume tools and creating profiles on the nation's Madiganlargest job search sites—CareerBuilder, Indeed and Monster—because of their age, potentially violating the Illinois Human Rights Act and the federal Age Discrimination in Employment Act (ADEA).

Three other job sites, Beyond.com, Ladders Inc. and Vault, were also sent letters requesting information about the companies' practices.

Ok.  I'm interested.  I'm at the older age range of GenX, so this is me some day in the future.

In one example provided by the attorney general, 1980 was the earliest possible choice for users' education or previous employment start dates, effectively barring anyone older than 50 from using the tool. Other sites used dates ranging from 1950 to 1970 as cutoffs.

How dare they.  Tell me more.

Madigan's office asked in its letter to CareerBuilder why users cannot choose a high school graduation date prior to 1955, saying that the cutoff excludes those who are 81 or older from full use of the site's services.

"CareerBuilder is committed to helping workers of all ages find job opportunities and has fixed this unfortunate oversight," said Michael Erwin, director of global corporate communications and social media for the Chicago-based job search site.

Uh, OK.  CareerBuilder's not automatically configured to let those 81 years or older apply for a job in the buzzsaw of corporate America?  I get that the tools need to be configured in an agnostic way from an age perspective, but 81?  Kind of feels like CareerBuilder had it mostly right.  Now thinking this is some grandstanding the AG is doing so she can stump to the older crowd at Piccadilly when she makes the run for Governor.

"Remember when those evildoers at CB were trying to take away your right to apply for a job you had no interest in doing?  I was there for you.  How's the red jello today?  Is the early bird special still on?  I might grab a plate after I get done telling you how the Internet is evil."

Austin, Texas-based Indeed's resume builder drop-down menu went back to 1956. "This did not prevent anyone from manually noting an earlier date on a resume, but we did extend that menu to 1900 after hearing of the concern in the letter," said senior public relations manager Alex Ortolani.

"Indeed's mission is to help people get jobs, and we strongly believe that age should not be a factor in evaluation of employment," he said.

No shit. This could have been a phone call to the job boards to tell them to have the stoner developer in charge of drop down menus to dial up 1900, just in case that nimble great/great/great/great/great grandma wanted that call center job.  But no, we get a PR release to take a shot at Job Boards, because, you know - the AG really gets the intersection of job boards and age discrimination.

No mention in the SHRM article about which job board only allows those creating candidate profiles to go back to 1970.  Maybe that's someone that needs a AG whack across the knees.

But 81 years old?  How about you just call CareerBuilder to ask that they expand the drop down menu and be a partner to business?

Of course, if the AG really understood discrimination, she'd be asking job boards to eliminate options that needlessly force people to show just how freaking old they are - like drop down graduation date menus.  

Instead?  We want the option to show if your parents voted for Teddy Roosevelt on 1900.  

Rock on, Lisa Madigan.  Your understanding of age discrimination is stellar.   


Sometimes You Get Sued and Your Best Employees Come To Your Defense...

It's every manager's worst nightmare. You did the right thing with some problematic employees, but then you got investigated/sued.

Getting sued is a scarlet letter.  Without question, it's much better not to get sued, but if you do the right thing and get sued as a result, sometimes you LOOK LIKE A BETTER LEADER THAN OTHERS AROUND YOU.

Such is the case with Missouri Softball Coach Ehren Earleywine, who's had a lot of success at Mizzou but was recently under investigation.  Here's a basic rundown of what transpired with the help Earlywine of reporting from the Kansas City Star:

1. Earleywine had been under investigation by the athletic department, and later the main campus through MU’s Office for Civil Rights & Title IX, for more than four months.

2. Former athletic director Mack Rhoades, who resigned July 13 to accept a similar position at Baylor, launched the investigation after receiving a complaint from several players alleging verbal abuse by Earleywine.

3. Missouri’s compliance department quietly interviewed team members during the season before the team’s Unity Council publicized the investigation May 7 by announcing the Tigers were playing under protest in a show of support to Earleywine.

4. After a first-round exit in the SEC softball tournament, Earleywine asked the players to end the protest, which Mizzou’s players agreed to do before hosting an NCAA regional. The Tigers dominated regional play, but lost to Michigan in the NCAA super regional round.

5. Missouri has concluded its Title IX investigation into Earleywine with no finding that he violated federal non-discrimination statutes.

Earleywine, a Jefferson City, Mo., native, is 453-154 in 10 seasons as Missouri’s coach. The Tigers have appeared in a NCAA regional every season of Earleywine’s tenure, advancing to a super regional eight times and appearing in three consecutive Women’s College World Series from 2009-11.

Here's what Earleywine said when the complaints first became public:

“There’s a couple of kids on the team that probably have things, exchanges between myself and them or different scenarios, that they would have liked to see handled differently,” Earleywine said. “I’m tough on kids. I make them accountable and there’s discipline in our program. I’m a throwback. If that’s demeaning, maybe, but it’s not about them, the person, it’s about their performance as a player.”

“I’m trying to build resiliency and toughness in people, and hoping that they’ll be better people when they graduate from here because they’ve been through some tough stuff,” Earleywine said. “Have I used some inappropriate language? Yes. Is that grounds for firing a coach? I think if you set that precedent, there won’t be a coach left in America. Outside of that, I’m not ashamed of anything that I’ve done.”
 
Here's what managers of people should learn from this:
 
1. There's an art to dealing with employees who won't get with the program. While you should treat everyone with respect, low performers and disrupters have to be addressed.
 
2. Tough decisions are yours and yours alone.  Don't expect anyone to help you.  This includes addressing low performance and attitude as the whole team sees it.  You've got to figure out the best way to deal with it.  Your goals should be to get performance out of the team as a whole, develop individual talent and treat everyone with respect.  But you have to be tough when circumstances and specific individuals call for it.
 
3. If you do what's outlined above - get performance out of the team as a whole, develop individual talent and treat everyone with respect - people will rally behind you if something bad happens - like a lawsuit, investigation, etc.
 
Of course, your employees can't attend a meeting under protest and make it public in a way that matters, right?
 
But your ability to deal with employees who won't get with the program is one of the most important things you can do.  And the reality is this - if you manage teams for more than a decade (especially if you manage a department with more than 10 people and multiple managers) and you haven't been the subject of a lawsuit or investigation of what I'll call nuisance value - you probably haven't been managing for results hard enough.
 
You play to win the game. Treat all with respect, but don't accept disruption or refusal to be part of a team.  Good HR pros will have your back - as well as some advice about ways you can avoid the investigation/lawsuit next time.
 

Amazon Sues Target For Non-Compete: 3 Things We Can Learn (or Remember)...

Dilbert

Every once in awhile we get reminded of the issue of non-competes - this week is one of those weeks. Amazon vs Target this time around, here's your level set:

Amazon.com is suing to enforce a noncompete agreement involving former logistics executive Arthur Valdez, who recently was hired by Target, a key rival in the retail market.

In a lawsuit filed Monday in King County Superior Court, Amazon says it wants to keep Valdez, who until recently oversaw Amazon’s international supply-chain expansion operations, from using the “confidential strategic knowledge” he possesses at Target.

Amazon argues that Valdez, who is set to become Target’s chief supply chain and logistics officer starting March 28, is in breach of an agreement that binds him to an 18-month timeout in which he cannot compete against his former employer.

The lawsuit underscores Amazon’s competitive streak — and the oversight it exerts over its intellectual property as rivals encroach on fields it helped develop. In 2014, Amazon sued Zoltan Szabadi, who left a job with Amazon Web Services for Google’s cloud-computing unit. It’s not clear whether these legal broadsides always work: Szabadi’s LinkedIn profile shows he has worked at Google uninterrupted since May 2014.

You're either yawning at this point, or you're interested - so I'll make it quick. Dig deep into this article from the Seattle Times and you'll see some key things we all should remember (or learn if you don't have a lot of experience with these things).  Lessons include:

1. Non-Competes are there to DARE you to go to work for a competitor.  Who's a competitor? Hell, we're not going to tell you that. We're daring you, after all.  Better than you think we'll frame anyone under the sun as a competitor. That's enough to keep most of our talent from jumping ship, even for a better offer.

2. You can still hire a person under a non-compete, and there are ways to mitigate your risk. One of the best ways to protect your company after hiring someone under a non-compete is to put them in a role that won't use the IP under the agreement.  If you're hiring a sales person, it's to let the former company know that the sales pro in question won't be calling on former customers for the duration of the Non-Compete.  Target claims to have tried to do that:

Target spokeswoman Molly Snyder said in an email: “We have taken significant precautions to ensure that any proprietary information remains confidential and we believe this suit is without merit.

3. If both companies are hard-headed about their positions related to the Non-Compete, the company with a significantly bigger checkbook wins.  Always remember this kids. Amazon vs Target is a couple of heavyweights who will spend what they need to, and a judge will ultimately decide. But, if you're a small company and you decide to pick off key talent from a bigger company, get ready to get drained. The company with the bigger checkbook will win, because they'll just bleed you dry on legal fees. Eventually, your C-level folks in a smaller company are going to say, "enough", and you might even be in the position of terminating someone you hired that had a non-compete - which is probably the worst position you can be in.

Can you hire someone under a non-compete?  Yes!  If you think the company in question might balk at it, you need to be prepared. 

Optics related to the role they're going in at your company matter.  

So does the size of your checkbook.  Lawyers cost money. Film at 11.


HEY BIG COMPANY: Are Your Management Trainees Bristling At Being Salaried Employees?

Ah yes... The time honored tradition of the management trainee position.  You know it, you love it. You recognize the value.

But are you legal when it comes to classifying those trainees as exempt?

Sigh - I know.

Someday my boys are going to grow up and they may land in a management training program right out of school.  If they even so much as give a peep about not getting comped appropriately for the work they're doing as grunts, you know I'm going to tell them ST_U and do the job.  Because you and I know that's the way the world works.

They have access to a program.  The best way to get ahead is to work hard and get promoted 5 times before you're 30.  That's what the ballers do.

Of course, most of your management trainees aren't ballers -and that's where most of the lawsuits about management trainees not getting hourly pay get started.  Burger King recently experienced this with I-can-t-keep-calm-i-m-a-management-trainee their class of Management Trainees - More from the always sexy TopClassActions.com:

"According to allegations in a recently filed overtime pay class action lawsuit brought by a former employee, Burger King Corp. misclassified its operations coaches and trainees as exempt employees in order to stiff them of overtime pay, saving the fast-food chain millions of dollars.

By classifying the coaches and trainees as exempt employees with no supervisory or administrative responsibilities, whose jobs consisted of performing “menial laborious tasks, including, operating cash registers, cleaning bathrooms, greeting and serving customers, and cooking food,” Burger King intentionally and repeatedly violated the federal Fair Labor Standards Act, according to the unpaid overtime class action lawsuit filed by plaintiff Ronald R."

Dunn kids - don't ever do complain about this.  I'm serious. I'll hunt you down - maybe even take back the Toyota I did you a solid by giving you.  But I digress - here's more:

“This was done so the Defendant would not have to pay their employees overtime while they were waiting for positions to open up, as Defendant continually hired for this position where the supply far exceeded the available positions,” according to wage and hour class action lawsuit.

“Due to high turnover, Defendant filled these spots like the NFL keeps a practice squad, waiting until someone quit or was fired, but in the interim working many hours in restaurants performing non-exempt duties without being compensated for overtime hours worked. This decision was made at the highest corporate level, was wrong, and the actors knew it,” the class action lawsuit states.

“The policy saves millions of dollars in labor costs,” according to unpaid overtime class action lawsuit.

New hires in Burger King’s corporate leadership development program, who would eventually become coaches and managers, had to work at least four days a week, up to 13 hours a day, cooking hamburgers and French fries and cleaning restrooms, the class action lawsuit alleges. Once in management, the trainees would be expected to know how every aspect of the restaurant is run so that they can train other workers. But the overtime pay lawsuit maintains that overtime is mandated during the training program, during which “reasonable lunch breaks” are denied.

According to the unpaid overtime class action lawsuit, Ronald spent five months in the trainee program, where he regularly worked 60-hour work weeks. Even after he was promoted to a sales, profit and operations coach, Ronald claims that he never supervised two or more full-time employees, the threshold needed to satisfy the executive exemption.

The overtime pay class action lawsuit, filed in a Florida federal court, seeks to represent a nationwide Class of Burger King employees who in the past three years have been classified as trainees in the leadership program and/or who have worked as a sales, profit and training coach in one of Burger King’s more than 10,000 restaurants across the country.

There are some 1,500 employees who may qualify to be part of the Class, the wage and hour class action lawsuit states. Burger King is headquartered in Miami."

Bonus points by the NFL practice squad reference.  BTW, lunch is when the business you joined makes money.  But I continue to digress - you're no baller.  Get prepared for a life in the trenches, my class action suit friends.


All the Best Uber Drivers I've Had Want to be Contractors, Not Employees...

If you follow Uber at all (ride-sharing instead of taxis for the uninitiated), you probably saw this week that a court in California declared an Uber driver an employee instead of a contractor.

Earlier today, I saw this piece by the LinkedIn Editorial team - Chariot is Decidely Not the Uber of Employers. Uber

Which is to say that a lot of liberal sources think it's a travesty that Uber can manage its company on the back of contractors.  These folks think that's unfair - that all Uber drivers should be employees.

It's easy to agree with that, but here's the dirty little secret - the best Uber drives don't want to be employees - they want to be contractors.

Case in point - I'm about 40 rides into my experience as a Uber customer.  Here's a rundown of the best drivers I've had:

--The commercial real estate agent who was going through a messy divorce and needed money.  He not only did the ride, but gave me his card for all my ride needs moving forward in that city.

--The Middle Eastern guy who was finishing up college and told me about the software idea he and his brother we're working on the side.

--The middle manager in Corporate America who needed money for a trip his son was taking and was doing rides on the side.

Translation - the thing they loved about Uber was the flexibility - they could drive when they wanted to, and all of them had an end goal in mind.  They weren't looking to be employees, they were looking to be opportunistic and use the service towards their goals.  

Oh, and 2 of the 3?  Offered me bottled water that came out of their own pocket. Hmmm...

They were attempting to be entrepreneurial.  You gotta love that.  America, etc.

Making Uber drivers employees will end up in the "museum of unintended consequences"... We'll sue a firm like Uber into oblivion to force what we think is right, and as a result, Uber will staff up with employees during regular business hours - normal 8 hour shifts, etc.

And the entrepreneurial people I described using Uber for their own goals - they'll be dead to Uber because they can't be employees.

I get the laws.  But sometimes we kill the spirit of the best labor with laws.

Drivers who want to be employees or at least drive a car someone else owns?  They should go to a more formal place called taxi companies (although if the libbies dug in, they'd find not everything is kosher there).  And everything you experience at taxi companies is how we got to Uber in the first place.


Is Anyone Else Fascinated by the Abercrombie and Fitch Supreme Court Case?

Surely you're in professional awe of some of the issues in play in the current Abercrombie and Fitch Supreme Court case focused on Religious Discrimination, right?

Need a reset?  Here you go:

An Abercrombie and Fitch manager declined to hire Samantha Elauf, then 17 years old, at a Tulsa, Okla., store because the head scarf she wore to a job interview violated the company’s “look policy,” a dress code requiring staff to wear attire similar to what the store sells.

While managers correctly believed Ms. Elauf was a Muslim, she didn’t tell them her religion and its requirements, so the company's position is that it shouldn’t be liable for discrimination. To do so, A&F lawyers claim, “is asking employers to treat applicants differently based on stereotypes or assumption about whether something is likely a religious practice.”

Ugh.  Look policies and a connection to religious beliefs.  How you feel about this probably depends on whether you think candidates should always identify any personal appearance markers (head scarf, beards, etc) as being representative of religious beliefs.

If they identify, there's no question.  But it they don't identify, should you have the right as an employer to dismiss as a candidate based on something as nebulous as "look policy"?

Double ugh.

Here's a couple of Supreme Court Justices weighing in over the last week:

JUSTICE ALITO: "All right. Let's say four people show up for a job interview at Abercrombie. And this is going to sound like a joke, but, you know, it's not. (Laughter.) So the first is a Sikh man wearing a turban; the second is a Hasidic man wearing a hat; the third is a Muslim woman wearing a hijab; the fourth is a Catholic nun in a habit. Now, do you think ... that those people have to say, 'We just want to tell you, we're dressed this way for a religious reason. We’re not just trying to make a fashion statement.'?"

JUSTICE KAGAN: "But you're essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation, to ask some questions. Now, people can disagree about whether one can ask those questions in a way that's awkward at all, but you’re saying we should structure the whole legal system to make sure that there is no possibility of that awkward conversation ever taking place. But the alternative to that rule is a rule where Abercrombie just gets to say, 'We're going to stereotype people and prevent them from getting jobs. We'll never have the awkward conversation because we're just going to cut these people out and make sure that they never become Abercrombie employees.' Now, between those two options, the option of using a stereotype to make sure that somebody never gets a job and using a stereotype to have an awkward conversation, which does this statute seem to think is the worst problem?"

It will be interesting to see how this one comes back.

BTW, Elauf if now employed at an Urban Outfitters location.  No joke.  They hired her, and it would seem their look policy is a little different that A&Fs - which is probably apparent to EVERYONE.


The Non-Compete Sliding Scale: Degree of Talent vs. Quality of HR Pro...

Got a call from a good friend who had been presented with the first non-compete of her career to sign.  Her questions were good ones - what should I do? - and more importantly - Am I allowed to ask questions?  How is asking questions perceived by HR?

Non-competes are shrouded in mystery to many.  I won't debate the merits or enforceability of non-competes with this post, but I will shed some light to the uninitiated on how asking questions regarding a non-compete you've been presented with is perceived in the HR community.

Like all things in life, how asking questions about a non-compete is perceived depends on who's asking... and who's listening.  The reaction to your questions is based on a sliding scale of how talented you are, and how the HR Pro fielding your questions views the world:

1. The more talented you are, the more it's expected that you'll have questions.  Early career or commodity talent usually doesn't have a lot of questions about non-completes, and that's because they're not thinking too much about their next step.  Conversely, the more talented an individual is in their field, the more they've thought about their next step, including possibilities outside their company.  Smart companies and managers understand this, so the more talented or highly regarded you are in your field, the more questions are expected.

2. The quality of the HR Pro fielding your question also matters when attempting to work through non-compete issues.  If you're dealing with an HR Pro who views the world as a pure administrator, it's likely he or she will simply be trying to check the box (got all the non-competes signed) and nothing more.  However, if you're dealing with an HR Pro who views the world from a talent perspective (actively recruits, interested in things like performance management, succession planning, etc.), they expect a talented person is going to have questions.

The sliding scale described above is alive and well in organizations when you're presented with a non-compete.  If your company presents you with a non-compete, it's likely you need to sign it to remain employed, but the more talented you are, the more it's expected that you'll ask questions.  If you're talented (and you need to look inward on that one), and if you run into a HR Pro who doesn't really seem interested in discussing the specifics, the advice is pretty simple:

Escalate it to your line manager for discussion.  Odds are your manager will understand your questions where the administrative personnel FTE did not.