"No Poach" Recruiting Agreements Continue to Fall Across Corporate America...

If you've been in the business world long enough, you've ran into executives at both small and big companies making agreements to not recruit other company's employees.  These agreements are a by-product of the good-ole-boy network and usually the result of one executive knowing another and agreeing to keep each other's companies "off-limits" to recruiting efforts.

It's called collusion, right?  Funny thing is, HR has never really had a voice in that.  Instead, we find out what the agreement is "ex post facto" and if we're really lucky, we get to ruin someone's life by retracting an offer due to these informal agreements - after that employee has already resigned at their current company. Trading places

It's always been stupid like that.  The good news is that the legal system is rapidly taking these agreements off the table.  First it was Silicon Valley and now seven fast food chains — including Arby's, Cinnabon and McDonald's — have pledged to end so-called "no-poaching" rules that have prevented employees from moving from one franchise to another within the same restaurant chain: More from CNN:

"Washington state's Attorney General Bob Ferguson said Thursday the agreement could end the practice at roughly 25,000 restaurants nationwide.

The move will mean fairer hiring practices for "tens of thousands of low-wage" workers in the United States, Ferguson's office said. His office also said it will take legal action against franchises that violate the agreement, and the companies could face civil penalties or fines.

The fast food chains included in the agreement are Arby's, Auntie Anne's, Buffalo Wild Wings, Carl's Jr., Cinnabon, Jimmy John's, and McDonald's (MCD).

"No-poach" rules bar workers at franchise-owned restaurants from being hired by a separate franchise within the same chain.

Because such rules are usually laid out in company-franchise contracts, and not in worker agreements, employees have often been unaware they existed, Ferguson's office said."

Uh, yeah - the employees didn't know they existed because they are LITERALLY THE LAST THING ON ANYONE'S MIND IN THESE AGREEMENTS.

The no-poach agreement will continue to exist in pockets, but I've got good news for my HR leaders who are expected to enforce them.

You can now tell your company they are illegal as hell.

Score one for the worker.  I'm generally pro-business, but c'mon.  A no-poach agreement that means a counter worker at Arby's can't move to another Arby's?

This is why we can't have nice things.


Uber CHRO Resigns Amid Whistleblower Allegations: Serves as Cautionary Tale for HR Pros at all Levels...

Uber's HR shop has always been a bit of a mess.  As is often the case, the company outgrew a capable HR leader who was overran by the personality of a founder with total power, and the company decided it was time for a change.  Uber brought in Liane Hornsey to bring mature chops to the situation.

It apparently hasn't gone well.  In addition to encouraging employees to hug during town hall meetings with the singular purpose of talking about harassment issues (WOW!), Hornsey has been accused of routinely dismissing racial discrimination claims.  Can't make this stuff up.

More from Engadget:

Uber's Chief People Officer Liane Hornsey has resigned after a third-party firm investigated allegations that she routinely dismissed internal racial discrimination complaints. She joined the company a month before former engineer Susan Fowler penned a blog post talking about the rampant sexual harassment and sexism she endured at Uber. As head of the HR department, Hornsey served as one of the company's top spokespersons on issues regarding diversity and discrimination throughout the upheavalthat followed. Bo Young Lee, the ride-hailing firm's first diversity chief, was even ordered to report to her instead of to the company's new CEO Dara Khosrowshahi.

"Uber's Chief Legal Officer Tony West ordered a probe into the way she handles discrimination reports after a group of whistleblowers threatened to go public with their complaints if the company doesn't take action. The group, who told Reuters that they're Uber employees of color, also accused Hornsey of using discriminatory language against the company's Global Head of Diversity and Inclusion Bernard Coleman. They claimed that she threatened former executive Bozoma Saint John, who joined the company from Apple Music with the intention of fixing its internal cultural issues, as well.

Uber's Chief People Officer Liane Hornsey has resigned after a third-party firm investigated allegations that she routinely dismissed internal racial discrimination complaints. She joined the company a month before former engineer Susan Fowler penned a blog post talking about the rampant sexual harassment and sexism she endured at Uber. As head of the HR department, Hornsey served as one of the company's top spokespersons on issues regarding diversity and discrimination throughout the upheavalthat followed. Bo Young Lee, the ride-hailing firm's first diversity chief, was even ordered to report to her instead of to the company's new CEO Dara Khosrowshahi."

Today's lesson for anyone reading this - HR or line leader - is that YOU ARE RESPONSIBLE FOR ENSURING that allegations of unfair treatment get the focus and attention they deserve. That means:

  1. listening with empathy
  2. taking action via investigation
  3. reporting back on outcomes to those who raised the issue.

It's HR 101.  It should be common, but it's not as routine as it should be. Wake up call - you've always been at risk when you fail to do the hard work associated with #1 through #3.  

In today's world, we're more at risk than ever as HR pros, as the Uber news shows.

Do the work.  Do your job, no matter how bogus you think the claim is.  

YOU HAVE TO DO THE WORK.  

 


The Self Driving Car Industry Illustrates The Reality of Today's Non-Compete Agreement...

A lot of people will tell you that non-competes aren't enforceable.  My experience with them says that the company with the most leverage/biggest checkbook can inflict a lot of financial pain on a smaller competitor that poaches talent (when there's a signed non-compete in play_.

The rules as I see them:

1.  Bigger companies can afford to write checks to enforce a non-compete when a much smaller competitor steals talent from them.

2.  Smaller companies can't do much to big companies who steal talent (where the past employee of smaller company had a signed non-compete).  They're basically starting a battle they can't afford.

3. Big company vs big company is more complex. Both have resources, so the considerations are more strategic - things like influencing others to not challenge non-competes comes into play, IP considerations, etc.

My experience is the biggest checkbook wins.  That means that while the non-complete may not be enforceable, there's still a leveraged play to be made to inflict pain or play strategic games.

But if you're interested in the actual legal merits of non-completes, movement in the self-driving car industry tells you they are DOA.  More from Tech Times:

"Apple is beginning to acquire high-profile employees to help develop its self-driving software project, which reports say is already behind schedule at this point.

The Information reports that Apple has hired Jaime Waydo, who previously worked as a senior engineer at Waymo and was involved in the development of one of NASA's Mars rovers. An Apple spokesperson has since confirmed the hiring but didn't reveal what she would be working on inside the company.

Waydo, who served as head of systems engineering at Waymo, is described by her colleagues as "instrumental," according to the report. She led safety verification for the company's prototypes and delivered input on when it was safe to launch on-the-road tests in Phoenix back in 2016. It's safe to assume she'll do similar work in Apple's turf." No driver

Think about that for a second.  An industry with max innovation going on allows creators to move between companies.  If that doesn't tell you that non-competes are dead (see my rules, you can still inflict pain, but we're talking here about the legal merits), nothing will.

Part of that is likely due to the fact that in the PRoC (People's Republic of California), non-competes face such a hostile legal environment that companies don't even try.

Which brings us to the the 4th rule of non-competes to add to my 3 rules at the top of this post:

4. The new way to enforce TAFNAANC (the agreement formerly known as a non-complete) is to make employees sign hardcore Intellectual Property (IP) agreements, with strong provisions not to transfer IP or infringe on IP created at your company.

How do you do that?  I don't know, but look no further than the alleged theft of trade secrets by a former Google engineer Anthony Levandowski—and the alleged use of those secrets by Uber—which was at the center of Waymo’s lawsuit last year vs Uber.  

It wasn't a non-complete that crushed Uber, it was the allegation that Levandowski used trade secrets at Uber developed at Google/Waymo.

For a lot of you reading this, you're thinking this is all a little bit deep when it comes to how you should consider non-competes - and you're right.  Continue to have narrowly drawn non-competes signed by sales pros and others that make sense if legal in your state.  They are a barrier people have to think about.

But if your product is IP heavy, consider re-looking at your IP agreements people sign when they come info the company.

Oh yeah - then put some golden handcuffs on people in the form of LTIPs so they have to think twice about leaving money on the table before leaving.  LOL.

Good luck!

  


Age Bias and the PricewaterhouseCoopers Case...

Hey companies filling your employment coffers with low priced talent!  You might want to take a look at the numbers...

In case you missed it, PricewaterhouseCoopers took an Age Discrimination case in 2016.  Some legal details from the site that's inviting others to join the class action: Old school

On April 27, 2016, Steve Rabin, an older CPA who was denied employment at PricewaterhouseCoopers LLP (“PwC”), filed an age discrimination class and collective action on behalf of himself and all other unsuccessful PwC accountant applicants aged 40 and over from 2013 to the present.  The lawsuit is titled Rabin v. PricewaterhouseCoopers LLP, Case No. 3:16-cv-02276, pending in the United States District Court for the Northern District of California.

The class and collective action complaint alleges that PwC has engaged in systemic discrimination against older applicants for accounting positions.  For instance, PwC primarily hires entry-level accountants through campus recruiting, does not post entry-level accountant positions on its website, and provides no ready mechanism for individuals no longer affiliated with a college to apply for these positions.  Moreover, PwC prides itself on maintaining a young workforce, focusing on attracting and maintaining “Millennials,” and requiring partners to retire by age 60.  The ageism that pervades PwC’s recruitment system and corporate culture has resulted in older accountant applicants being almost completely shut out of accounting positions at PwC. 

In February 2017, the Court ruled that Plaintiffs can pursue disparate impact claims against PwC under the ADEA.  PwC had argued that job applicants are not allowed to pursue such claims under federal law.  You can find more information about this recent ruling here.

In December 2017, the Plaintiffs asked the Court to allow all applicants covered by this case to proceed together on a collective basis rather than individually, in what is called a motion for conditional certification. A decision by the Court is likely this spring. Please check back in April of 2018 for updates.

The Goal of the Lawsuit
The class action seeks seeks to require PwC to hire accountants based on merit alone, without regard to their age, and to compensate accountants who might have been hired but for PwC’s discriminatory practices.

Yowza.  The Wall Street Journal reported some interesting numbers on Tuesday as a District Court Judge heard arguments from both sides on whether to allow 14,000 other older candidates who didn't get a job with PwC to join a class action on the same claim.  I can't share the exact text from the WSJ since it's behind a paywall, but here's a couple of tidbits:

--PwC hires less than 5% of the 300,000 applicants who apply annually in US.

--PwC hired 18% of the applicants who were under 40 to it's tax and assurance business, while only hiring 3% of the candidates over 40.

--Older workers claim that older workers are steered to part-time and seasonal roles are aren't considers for the entry level roles the company lists as full time opportunities.

For now, the judge is simply ruling on whether to allow the 14,000 older candidates who have raised their hand to join a class action suit.  An actual ruling on the matter could be years away.

Interesting legal battle.  Without question, companies like PwC prefer to hire young talent that's cheaper right out of college.  Is that bias? If so, will they be held accountable for it?

Going to be interesting to track this one.

 


Can HR Be Trusted to Lockdown Vulnerability and Secrets From the Employee Base?

At the end of the day, employees have to trust any HR pro enough to come forward and share bad stuff with said HR pro.  What type of bad stuff?  What type of bad stuff do your employees have?

Hate. Addiction. Family Dysfunction. Ambition. Concerns about others.  Just to name a few.

All these things and more are filed under topics that employees would love to talk to someone about. Due to the role of HR, a good HR pro is a likely target for an employee to vent to.  But before they make the decision to confide in you, they have to evaluate whether you can be trusted.

More from Jennifer McClure at Unbridled Talent:

"But I do recall a conversation I had one day with an employee who was experiencing some issues at work. When I offered to listen and provide support, she said “Unfortunately, I can’t talk to you about this. It’s not that I don’t trust you personally. It’s the chair that you sit in. You have the authority to fire me. And I can’t risk that.”

After she left my office, I thought about what she’d said. I wanted to be offended. But I kinda understood where she was coming from. While it was frustrating that she wouldn’t allow me to try to help out just because of my position in the organization, I also knew that sometimes it was part of my role to be involved in making decisions about her career. So sharing a weakness or performance problem with someone who has that type of influence could be perceived as a risk."

Go read Jennifer's post.  Then think about the kind of HR pro you are.  I'd tell you that when it comes to employees considering whether they want to confide in you on a deep level, there are 3 types of HR pros:

  1. No way, no how. You've got a reputation for sharing information about others with the wrong people. You talk too much, and this is most commonly manifested by you talking about other employees to... you guessed it.... their peers - other rank and file employees.  Which causes them to wonder what you would do if they shared something deep about themselves that they're struggling with.
  2. You haven't ####ed it up yet. They look at you as an HR pro and see someone they shouldn't distrust, but you haven't earned your stripes yet as someone that can go on lockdown and be fully trusted.  At some point, someone's going to test that, seeking to trust you and ask you for advice.  When that day comes, you'll have to listen, offer advice, put the info in a lockbox (shoutout to Al Gore, inventor of the internet) and not share with anyone.  You know, be trustworthy.
  3. The Rock. Employees have trusted you with some bad stuff about themselves in the past. You listened, offered advice and then most importantly, locked it down.  You didn't talk to other employees and just as importantly, didn't share the info with their boss, other senior team members in your unit, etc.  As a result, employees talk. You've got a reputation as someone that can be trusted, even though the employees who share that opinion never talk about what they shared with you.

HR pros earn their reps with results - either negative or positive - when employees choose to trust them. Like the rest of the human race, some HR pros are great building and maintaining trust, some aren't.

My advice for any HR pro is to develop a quick script to share with any employee that approaches you and tells you they're about to go deep.  My favorite is something related to confidentiality that suggests, "if you're asking for confidentiality, I can tell you I can deliver that with the exception of things that are legal issues or would negatively impact our business."

My experience is that the best HR pros usually have quite a bit of stuff on lockdown.  Do employees trust you?  That's a fair question any HR pro should ask themselves.

 


What Part of the Normal American Workplace Will Be Most Impacted by #metoo?

There's a ton of good that's come from the daily breaking news associated with the #metoo movement.  Creeps everywhere are being held responsible for their behavior, and society in general seems to have a higher awareness for what's appropriate and what's not.  There's a lot of details in between, but the one I spend the most time thinking about is the following:

When does the #metoo movement hold common day, ordinary creeps accountable Work deep into the American workplace, where there's no media coverage of the proceedings?

I'm not sure I know the answer. For all of the good that's come out of the #metoo proceedings, it's still murky how the ordinary American workplace will be impacted.  Awareness is great, but the true creeps can keep on giving the creepers to all around them at the soft drink distributor in Peoria, IL.  There's no media to report on those stories, and without the positive impact/protection of coverage, many impacted by harassment are less likely to report.

The industry that might have the most potential for a #metoo movement aware from media coverage?  It might be your local restaurant.  Here's more from the New York Times:

"Restaurants are like pirate ships. Each has its own code, with distinct values and rules. Some crews are kind, supportive and disciplined, relatively speaking. Others are angry, surly, misogynistic and drunk. New crew members quickly fit in, or jump ship. Like pirate crews, restaurant staffs are cohesive societies, but they aren’t big on transparency, and it’s hard for outsiders to know what’s happening.

Fifty years ago, when nobody cared what went on in restaurant kitchens except health inspectors and tax collectors, acting like pirates was probably a useful skill. Today, though, it is outmoded.

Customers may enjoy the occasional sample of salty pirate speech, but they also care about the inner workings of kitchens. They know the names of the chef, the sous-chef, the pastry chef, the head bartender. They’ve watched TV documentaries about the creative process behind trout roe in little cups made of pig’s blood. They’ve heard many chefs talk on many occasions about certain kinds of ethical behavior, having mostly to do with livestock.

Something has gone grotesquely wrong when chefs brag that the chickens they buy lived happy, stress-free lives, but can’t promise us that the women they employ aren’t being assaulted in the storage room."

I'd encourage all to go read the NYT piece.  There have been celebrity chefs who have been taken down my #metoo, but the vast majority of the industry isn't driven by celebrity chefs.  

But, the familiarity of customers with the chefs and staff at private restaurants across America presents an interesting opportunity.  If you care about where the chickens come from as a patron, do you care about the treatment of the women staff at La Paz?

Not many customers are sensitive to how anyone is treated at the cable company.  They already hate the cable company, so it stands to reason that the cable company treats their people like garbage (no matter how wrong the treatment is).  No one would be surprised by that.

But your local white cloth restaurant?  What would you say if you new the owner was asking female servers to come pick up the cash bag at his place and opening the door in a robe?

Yeah, you'd probably get the creepers and not go back.

With tools like Yelp out there, were only a new feature away from the review economy telling you how female friendly that privately-owned restaurant is.

For that reason, the restaurant industry is ripe for accountability related to the #metoo movement.

Interesting times.


NBC's New Rules on Workplace Hugging Means NO HUGGING....

If you thought you were going to just keep doing what you are doing related to PDA (public displays of affection) in the #metoo era, you're not only naive, you must be saved from yourself.  All your hugging, your slight touches to the shoulder, the full mouth kissing (OK, hopefully you weren't doing that) is persona non grata, or at least it should be.  That's why NBC, after s#x machine Matt Lauer got outed, is creating specific rules about what's acceptable and what's not.

More from Page 6:

"NBC has issued strict new anti-sexual harassment rules to employees — including that staffers must snitch on any misbehaving colleagues — in the wake of the firing of disgraced “Today” show host Matt Lauer.

A source tells Page Six that NBC employees have been ordered to report any inappropriate relationships in the workplace — and if they fail to do so, they could be fired for covering up for colleagues. Side hug

Detailed rules also have been issued about conduct in the office, including how to socialize and even how to hug colleagues.

One rule relates to hugging. If you wish to hug a colleague, you have to do a quick hug, then an immediate release, and step away to avoid body contact."

The NBC rules on hugging show just how far we still have to go when it comes to legislating hugs in the workplace.  My friend, Tim Sackett, is the world's leading expert on workplace hugging.  Lucky for you I'm here to give you the new rules for hugging in the workplace.  Let's use the framework for what's been reported related to the hugging rules at NBC.  Here's the new NBC guidance on hugging:

"If you wish to hug a colleague, you have to do a quick hug, then an immediate release, and step away to avoid body contact."

Here's the new HR Capitalist Rules on Hugging:

1.  Are you a guy?  And, correct me if I'm wrong, you still want to hug someone?  You may have a high IQ, but street smarts aren't your thing.  Why are we talking about hugging?  Oh, I see, you're different, no one will get the creeps from your hugs.  Riiiiight.

2.  You still want to hug?  OK, the NBC rules don't go far enough.  If you must, go in side to side for a "side-hug", with outside of shoulders touching.  For best results, lean in for the side hug at least a foot, leaving all other parts of your body far from the subject of your hug.

3. Your hand should be top of the shoulder - nowhere else. Release in under 1 second.

4.  This just in, if you wait to think about avoiding body contact until you release the hug (like the NBC rules remind you), you've already lost in the new world.  

The final rule of hugging in today's workplace is that it's Darwinian in nature.  It's like natural selection in some ways.  Those that think hugging is still cool and they'll never be misinterpreted are missing the adaptation that others will automatically get. 

I get that most of you aren't perves.  But when NBC is issuing rules on hugging, the clear message is that you shouldn't hug.  

I know, you had so much to give to build a more compassionate workplace with your hugging.  Sucks to be you.  Maybe a hardy handshake is your best bet.

 


The HR Capitalist Playbook for Men Avoiding Workplace Harassment Claims...

Harassment claims have been in the news lately, and it's an interesting time for HR leaders.  Whether you're talking about the latest Harvey Weinstein reports or all the crazy stuff that went down at Uber, you've probably never had everyone's attention on the male side of the house like you do today.

What do you do with that attention? Well, it's probably not enough just to email Harvey Weinstein and Uber rundowns to your management team.  While that seems reasonable, a new Cavemanreport from The New York Times shows that all the well-intentioned promises may have resulted in some serious unintended consequences:

"A big chill came across Silicon Valley in the wake of all these stories, and people are hyper-aware and scared of behaving wrongly, so I think they’re drawing all kinds of parameters," an anonymous venture capitalist told the Times.

The anonymous VC told the Times that he's actually cancelled one-on-one meetings with female engineers and potential recruits to protect himself from any "reputational risk."

YEP - THESE ARE ARE MALE MANAGERS.  SIMPLE FOLK.  CAVEMEN.  "SOMEBODY GOT A HARASSMENT CLAIM, SO I'M NOT MEETING ALONE WITH LADIES".

WTF...

As much as I'd like to think this attitude doesn't touch companies like yours and mine, it does.  It's the "let's take our ball and go home" mentality.  Crazy but true.

Lucky for you, I'm here as a guy HR leader to give you my straight up Playbook for Men Avoiding Workplace Harassment Claims.  Here we go:

1--Don't have designs on sleeping with someone at work.  Whether you're single or married, don't do it.  I'm not the morality police, but if you target someone for romance at work, you get what you get.  It's just problematic.  Don't do it.  And for the ladies in my family life who read my blog, I should mention this (morality alert!), if you're a guy who's married, don't be a sleaze.  Honor the commitment.  But if you're incapable of that, stay out of the workplace, Jack.

2--When on the road, don't do stupid stuff.  I'm on the road a lot, and things like having a lady hold your bag in her room is just problematic.  Check your bag and handle small stuff on the road without treating a female co-worker like your wife/girlfriend.

3--Be personable in conversation without probing.  Look, it's OK to make small talk about life with your female co-workers, and every once in awhile, it goes to a place of personal information.  It's not uncommon for that to happen, what matters is what happens next.  Don't probe for more, get out and take the conversation back to something rivaling a mundane USA Today article.

4--Hold your one-on-one meetings with females in public or somewhat public places.  The more private the room is, the more you really don't need to be there.  If you meet on the road in a hotel room with a female, you're a moron.

BONUS - and I call this the Harvey Weinstein rule - don't answer the door on the road in a robe.  Who the #### uses a robe in hotel room?

That's what I got.  What do you have to add?


The Tyranny of Single Stall, Gender-Neutral Bathrooms in the Workplace...

Notes to follow from life on the road...

Topic: Transgender individual's rights to use either bathroom (men's or women's) they desire.

Buckle up, people. But it's probably not going to be what you think. TG

I spend a lot of time on the road, and I spend that time in a lot of different parts of the country.  One thing that's happening in retail (shops, restaurants, etc) points to a trend I hope doesn't come to office parks.

Here's the trend... Businesses - faced with legal pressure or simply wanting to accommodate Transgender individuals - are increasing changing single stall bathrooms (one for men, one for women) to gender neutral status.  That "reclassification" means that either men or women can use either bathroom that is available.  That solves the transgender issue without the economic burden of retrofitting a third bathroom to exist alongside men's and women's facilities.

I understand that I'm probably going to get emails from what I've wrote already, because I'm not an expert in Transgender issues.  Send your emails, however, because I do want to learn more and understand to a greater degree.

But I am an expert in some things.  Allow me to school you on why reclassifying a men's and women's bathroom to gender neutral-status doesn't work:

Men are pigs.  Females deserve better.  

If 10 dudes use a bathroom during the day, odds are it is not going to be suitable for a woman, or anyone who wants to sit down.  This just in - Men often go to the bathroom standing up.  Hit this link if you want to see the legal world in action on this issue.  

When businesses make existing single-stall bathrooms gender neutral, females (anyone identifying as female) lose.  And this trend is alive and well in some areas of the country.  It's a natural, completely understandable reaction to the capital cost of building new facilities.  

I can only hope this trend can be avoided as transgender issues become more accepted and we work through the same challenges in the workplace.

Rights for everyone - Ok and check.  Let's evolve together.

Rights for dudes to use bathrooms on a frequent basis that females will have to use afterwords - we're better than that America.  

No.  Just no.