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.

Chivas USA: When Your HR Manager Sues For Discrimination, You Might Want to Strap In...

When your HR Manager files discrimination charges after credible employees do, you know:

1. There was probably some validity to the orginal charges, 

2. You likely have a renegade executive doing whatever the hell they want, and 

3. FYI: You are hosed. H-O-S-E-D, I say.

Backstory- Chivas USA is a major league soccer franchise located in Los Angeles.  You've heard of the LA Galaxy with Beckham, right?  Chivas USA is in the same league.  They play in LA too.

Jorge Vergara, a former part owner, gained full control of the team in November 2012 and allegedly began harassing non-Latino employees. Vergara also owns a Mexican team called Chivas de Guadalajara, which is famous in part because it will not sign non-Mexican players.  The recent charges and a bunch of other coverage claims he wanted to bring his 100% Mexican playbook to Chivas USA, including youth feeder programs in addition to the professional club.  

Problem is, Chivas USA is located in...well, the USA.  Thus the name.  So a policy including 100% Mexican players is a bit of a problem.  

First, 2 coaches filed discrimination charges.  Read something I did over at Fistful of Talent for that rundown.  Ugly.

Then, the HR Manager files similar charges.  Oops. Ugly times 2.  More from the Daily Breeze with a h/t to Deadspin

"The suit charges that, starting in January, Chivas hired four coaches from Mexico even though they were not authorized to work in the United States. According to the suit, HR Manager Cynthia Craig was told to add the coaches to the payroll but she refused, and team executives instead routed them money through other means. (The complaint states the coaches received visas in April.)

Craig, who is black, said in court papers that she was harassed by team owner Jorge Vergara and team President Jose David because she was not Latino and could not speak Spanish. Craig left the team in July after a period of prolonged harassment, the complaint states.

Her suit also charges that, starting in January, Chivas hired four coaches from Mexico even though they were not authorized to work in the United States. According to the suit, Craig was told to add the coaches to the payroll but she refused, and team executives instead routed them money through other means. (The complaint states the coaches received visas in April.)

In her suit, Craig said Vergara began one of his first staff meetings speaking in Spanish and then said, in English, “If you didn’t understand what I just said, then it is time for you to get a job down the hall.” (Chivas shares the StubHub Center in Carson with the Los Angeles Galaxy, another professional soccer team.)"

When the HR Leader is filing charges against you, you probably need to put on your helmet and seatbelt.

REQUIRED READING: One of the Most Public Harassment Lawsuits You'll Ever See...

OK - you deal with a lot of stuff as a talent pro, and one of the things you have to deal with every now and then is a harassment charge.  That's why I'm pointing you to this case breakdown page at Business Insider, which details an entire case out of Silicon Valley at a high level of a venture firm.

Check out this page for the full rundown - I'm giving you two of the 12 breakdowns of the primaries involved below.  What the case shows isn't whether it's true or not (who knows, right?) - it's showing just how complex these things become when someone decides that it's time to go public with the harassment charge.

Lots of complexity in this one - you need to read it, no questions.  




BIZZARO: The Obama Administration's NLRB Gives "Guidance" on Social Media Policy...


That's all you can say.  Download the NLRB's recent guidance to it's Regional Directors on Social Media here

You can judge it overall on your own.  I'll give you one highlight (hat tip to Dan Schwartz) that shows how clueless appointees are to how things work in the real world.  Read it and weep:

"Sample Social Media policy cited: Use technology appropriately* * * * *If you enjoy blogging or using online social networking sites such as Facebook and YouTube, (otherwise known as Consumer Generated Media, or CGM) please note that there are guidelines to follow if you plan to mention [Employer] or your employment with [Employer] in these online vehicles. . . Don’t release confidential guest, team member or company information. . . .

What the NLRB said:  We found this section of the handbook to be unlawful.  Its instruction that employees not “release confidential guest, team member or company information” would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves--activities that are clearly protected by Section 7."

And you wonder why production of all types is going offshore.  So, you're telling me that you would strike down as illegal any language that says confidential information can't be shared because of your view on conditions of employment?  Without attempting to clarify and parse further?

Right.  You have no clue on how companies actually work.  It's the kind of thing that makes a business-focused moderate like me decide that the Libertarian path doesn't look so bad.  

WINNER TAKES ALL: Supreme Court to Determine if Pharma Reps Should Be Classified as "Exempt"...

They call it the Supreme Court for a reason, right?  It's supreme.  It's the "decider".

And the Supreme Court has one coming up that all of you should be interested in.  It's deciding whether Love-and-Other-Drugs pharma reps - those well dressed, good looking professionals who come in the doctor's office peddling their wares when you are there looking haggered, sick and generally untouchable - should be classified as exempt, or whether they in fact deserve overtime pay.

More on what's being decided in the case from the US Supreme Courts' blog (they've got a pretty good one):

"On April 16, the Court will hear arguments in Christopher v. SmithKline Beecham Corp. The Justices will decide, once and for all, whether pharmaceutical sales representatives (PSRs) are “outside salesmen” and thus exempted from overtime-pay requirements of the Fair Labor Standards Act of 1938 (FLSA) The decision will also settle a circuit split between the Second and Ninth Circuits:  the former held that PSRs are not outside salesmen and thus are not exempted from the FLSA’s requirement that they be paid overtime wages, while the Ninth Circuit (in this case) unanimously reached the contrary conclusion. This will be an interesting case with wide-ranging ramifications for the pharmaceutical industry and the ninety thousand people nationwide employed as PSRs."

More on the work duties and who the pharma reps are selling to:

"To understand the typical duties of a PSR, it is necessary to understand the concept of an “ultimate user” in pharmaceutical lingo. An “ultimate user” is the patient who actually takes the prescribed medicine. Under the Controlled Substances Act of 1970, no one, including drug manufacturers, can dispense prescription medicine without a physician’s authorization. Because the drug manufacturers cannot sell their prescription medications directly to the public, they sell the medications to distributors or retail pharmacies, who then dispense the medications to an “ultimate user” who presents a proper physician’s authorization.

Within this framework, Glaxo employs PSRs to make calls on physicians. At a call, the PSRs will typically present information and samples to the physician and attempt to convince the physician to prescribe their employer’s pharmaceuticals instead of the competition’s.

PSRs work almost entirely outside of Glaxo’s offices. Most of a PSR’s time is spent traveling to physicians’ offices within a specified geographic region. A PSR will ordinarily make eight to ten physician calls per day, usually between 8:30 a.m. and 5:00 p.m.  When not making physician calls, PSRs will study Glaxo products and relevant disease states. They will prepare new presentation modules, respond to phone calls and e-mails, generate reports, and attend evening and weekend seminars. These tasks are typically performed outside of customary business hours.

Of critical importance to this case is the fact that PSRs cannot sell samples, take orders for any medications, or negotiate drug prices or contracts with physicians or users. Instead, they can only try to convince physicians to prescribe Glaxo products instead of its competitors’ products."

Now, what the court is trying to decide:

"There are two issues before the Court.  The first is whether it owes deference to the Department of Labor’s interpretation of its regulations. The second is whether PSRs are outside salesmen when they cannot legally sell prescription drugs, but instead can only encourage physicians to prescribe their employer’s drugs.

In both the Second Circuit and this case, the Secretary of Labor filed an amicusbrief in support of the PSRs. However, the courts in each of those cases split on whether the Secretary’s interpretation of the Department’s regulations warranted deference:  the Second Circuit held that it did, while the Ninth Circuit held that it did not."

Interesting stuff.  Here's how they are currently comped according to the details on the USSC blog:

"For their services, PSRs receive two types of payment: salary and incentive-based compensation. Glaxo aims to have its PSRs receive seventy-five percent of their payment as salary and twenty-five percent as incentive-based compensation. However, the amount of incentive-based compensation a PSR can receive is unlimited. In general, a PSR’s incentive-based compensation is calculated by measuring the increase of Glaxo’s market share for a particular drug within the PSR’s territory."

For a deeper dive on what pharma reps make, see this breakdown over at Basically, pharma rep comp differs by company (makes sense - what primary product lines are they selling), but a good rule of thumb is salary of 60-70K and total comp of 90-110K.

Sound like an hourly job to you?   I'm also wondering aloud if the objection is that they aren't true outside sales professionals, they're still marketing professionals who have discretion about when/where/how they do their jobs, right?  The world has gone insane.  Pharma reps who make 100K are now before the Supreme Court with a 50/50 shot at getting overtime.

If that's the case and the court decides in favor of the reps, then if I'm a comp professional, I'm turning the model upside down.  Incentive pay goes away (and along with it, the ability to double your base) and I'm paying an hourly rate that factors in OT and reduces total comp to 85-90% of what I'm currently paying.

You know - just good enough to keep the talent in the job - but there's no way if the pharma industry loses the case that they're simply going to increase their talent comp structure by 15-20%.

And that, my friends, is what people who file and drive these cases don't understand.  The attorneys win again, and 90,000 pharma reps end up with a decreased ability to earn.  Nice.

Don't Think Googling Candidates is Fair? A Cautionary Tale...

I know, I know.  I should be concerned about Googling candidates.  After all, as many of you have pointed out to me, there are privacy issues, and dammit, what a person does elsewhere in their life shouldn't matter if they can do the job.

So, I Google anyway, and many of you disagree.  I'm a pig - I'll own it. There's just this little thing that I can't get over.  YOU'RE RESPONSIBLE FOR KNOWING EVERYTHING YOU CAN KNOW ABOUT PEOPLE YOU BRING INTO THE COMPANY.  And if you don't know things you should, you'll suffer the consequences.  Consider this cautionary tale via a conversation I had with an executive friend at another company:

KD: Rob, what's up?

Rob: KD, you'll never believe what just happened.

KD: Educate me, brother.

Rob: We had a Controller candidate in today.  I was the last guy up to interview him, and I had a resume, but I had a couple of minutes before the interview and no time to start anything else.  So I Googled the guy...

KD: <Bracing for contact> And?...

Rob: Turns out the guy was embroiled in a Sarbanes Oxley cluster scandal at his last company. First Google entry returned when I pressed "search".  WTF?  So I march down to the guy who's running the search, and say, btw, did you bother Googling Finklestein?  The guy tells me no, and since it's a retained search, the big search firm is responsble for fully vetting, etc.  I tell my guy that he might want to Google Finklestein.  He declined, but I insisted.  So he did and within 15 seconds let out a noise like he had just been kicked in the groin by a pointy-toed country western boot.

KD: Wow.  What happened then?

Rob: The candidate was intereviewing with the CEO.  My guy calls down to see where it's at and is informed that the CEO requested another hour because it's going so well.

KD: Ouch.

Rob: The lesson my Capitalist friend?  Always Google before you buy that plane ticket for the candidate.

If I was defending the right to Google candidates in a court of law and told that story, I'd drop my microphone for dramatic effect after sharing that knowledge, like Randy Watson of the band Sexual Chocolate, leaving the stage in Coming to America.

Just Google people.  Decide how you bring it up later.

The NLRB: Now Extracting Ransom (for Unions) From An Employer Near You...

You have to love this one.  The National Labor Relations Board, traditionally in place to ensure union elections go according to the law and to sort through claims of unfair labor practices from both unions, employees and employers alike, is now in the ransom business.

Read this article related to the NLRB dropping from the New York Times.  Cliff notes appear below:

"In the Boeing case, Mr. Solomon asserted that Boeing’s decision to build its $750 million Dreamliner factory in South Carolina constituted illegal retaliation against the machinists’ members in Washington for having exercised their federally protected right to strike. He cited public statements by Boeing officials about the machinists’ militancy in Washington State as one piece of evidence in the case, although Boeing officials said that lower costs were their major reason for choosing South Carolina.

After months of sharp rhetoric, Boeing and the machinists announced a surprise agreement on a new contract last week. Last week, Local 751 of the machinists’ union announced that 74 percent of its Boeing workers in Washington State had voted to ratify a four-year contract extension that included substantial raises, unusual job security provisions and Boeing’s commitment to expand aircraft production in the Puget Sound area.

The union then asked the labor board to withdraw the case."

Daaaaaamn.  Here are all the facts you need to know:

1.  The NLRB took action to tie up Boeing from opening a new plant in a non-union state.

2.  The claim existed until the union got a new contract.

3.  Once the union got a new contract, the NLRB withdrew its complaint.

Translation: The NLRB helped the union extract a ransom from Boeing.  The NLRB gave the union a bargaining chip to take to the negotiation table, then did what the union asked them to do once the new contract was released.

Winner:  The union.  Loser: Anyone who likes governmental agencies that are charged with enforcing the law not to overreach, pick sides or generally serve as a hindrance to the creation of jobs in a down economy.

You're not included in that description of who the loser is?  You're probably reading the wrong blog.

More Government BS: What's YOUR Batting Average For Getting Terminations Approved?

Not the batting average of line managers who want to term someone - YOUR batting average - the HR pro.

Once you decide that someone needs to go and pull it all together, I'm guessing that you are in the high 90's: 98, 99%, even if you have to deal with a corporate Attorney who approves all terms.

What if I told you there was a branch of government where the batting average for terminations was 60%?

Here's a snippet from BusinessWeek:

"Moments before a single-engine plane collided with a helicopter over the Hudson in 2009, the controller who should have been advising the plane's pilot was chatting on teh phone with an ariport worker, making crude jokes about cooking up a dead cat.  Nine people died.  Government safety investigators concluded that the controller was distracted and partly to blame for the accident, yet two years later he still has a job.  The FAA wanted to fire him, but he was ultimately reduced to a suspension, a transfer and a demotion.

That more common than you might think. More than 4 of every 10 air-traffic workers the FAA tries to fire ultimately keep their jobs or are allowed to retire to avoid being fired, according to goverment records obtained under the Freedom of Information Act.  From 2009 to 2011, the FAA sought to fire 140 controllers, but in the end only 82 were forced to leave"

As you might expect, the government system and decades-old union provisions allow controllers to delay or block disciplinary action.  They get to challenge proposed penalties to something called the Merit Systems Protection Board and also buy time by demanding their case be taken to an arbitrator.

Termination Approval Batting Average.  Aren't you glad you don't have to deal with that?

NLRB Case Against Boeing Puts Obama on Defensive, Proves Power of Appointed Seats...

You probably missed this last April - first, some details of legal action against Boeing from the NLRB earlier this year:

"In what may be the strongest signal yet of the new pro-labor orientation of the National Labor Relations Board under President Obama, the agency filed a complaint Wednesday seeking to forceBoeing to bring an airplane production line back to its unionized facilities in Washington State instead of moving the work to a nonunion plant in South Carolina.

In its complaint, the labor board said that Boeing’s decision to transfer a second production line for its new 787 Dreamliner passenger plane to South Carolina was motivated by an unlawful desire to retaliate against union workers for their past strikes in Washington and to discourage future strikes. The agency’s Boeing acting general counsel, Lafe Solomon, said it was illegal for companies to take actions in retaliation against workers for exercising the right to strike."

Of course, Boeing wasn't shutting down its facility in Washington.  It was moving production capacity to South Carolina, as a hedge to being held hostage by future strikes:

"The labor board said that in 2007, Boeing announced plans to create a second production line that would make three 787 Dreamliner planes a month in the Puget Sound area to address a growing backlog of orders. That was to be in addition to a line already making seven Dreamliners a month there. In October 2009, Boeing said it would locate its second line at a new, nonunion plant in South Carolina.

The N.L.R.B. asserted that on numerous occasions Boeing officials had communicated an unlawful motive for transferring the production line, including an interview with The Seattle Times in which a Boeing executive said, “The overriding factor was not the business climate. And it was not the wages we’re paying today. It was that we cannot afford to have a work stoppage, you know, every three years.

Boeing criticized the timing of the N.L.R.B.’s complaint, saying it came when construction of the factory in North Charleston, S.C., was nearly complete and after 1,000 employees had already been hired there.

Boeing said on Wednesday that none of the production jobs in South Carolina had come at the expense of jobs in Washington. It noted that its unionized employment in the Puget Sound area had increased by 2,000 since it announced its decision to expand in South Carolina.”

That's right kids - two existing production shops.  One union, one not.  The company decides to move some production to a non-union plant and in the time the company announces its intent, employment at the union plant grows by 2,000 jobs.  And the NLRB files this suit - after construction is almost complete.

What's wrong with spreading production of a product out across two plants, one union and one not, so you don't run the risk of not being able to deliver product if a stirke comes?  President Obama started ducking and weaving on the issue last week:

“As a general proposition, companies need to have the freedom to relocate -- they have to follow the law, but that's part of our system,” Obama said. “What I think defies common sense would be a notion that we would be shutting down a plant or laying off workers because labor and management can't come to a sensible agreement.

“And obviously, the air -- airplane industry is an area where we still have a huge advantage.  I want to make sure that we keep it,” the president added.

That's some official fence-sitting gibberish.  What's it all mean?"  My wife was a prosectutor for over a decade, and anytime I'm lukewarm about voting, she pushes me to remember that those elected have a lot of power to appoint Federal judges - who are the source of a lot of policy power.

The NLRB case against Boeing is a good example.  You can beat back the Employee Free Choice Act, but never forget - the people appointed by your elected officials control a lot of the power related to policy.

Be interesting to watch this one unfold in South Carolina...