Sharlyn J. Lauby's Blog, page 50

Title Inflation Can Attract Talent but Deflate a Job

Estimated reading time: 5 minutes

Job titles are important. I once had a vice president tell me, “Once you get director in your job title, you never have to go back.” And he was right. As I moved up the career ladder, I found that people asked fewer questions like “Do you know how to conduct job interviews?” and more about my point of view (POV). Your job title can imply you have attained certain knowledge and skills.

Which is why today’s interview is so important. If we don’t get job titles right, it’s possible that we could be creating something called “title inflation”. I recently had the chance to speak with Shawn Cole, president of Cowen Partners Executive Search located in Vancouver, Washington, about this dynamic. Cowen Partners is a full-service executive search firm whose clients include Starbucks, Nordstrom, T-Mobile, BlackRock, and one of my favorite tea companies, Steven Smith Teamaker. 

Shawn, welcome to HR Bartender. Let’s start with a definition. What exactly is “title inflation” and can you give us an example?  

[Cole] Title inflation is when a person’s title makes it seem like they have more responsibilities than they actually do. It’s an ego-driven approach to luring talent that might otherwise be hesitant to make a move. For example, we are seeing a lot of ‘head of XYZ’, which denotes leadership responsibilities without a VP or chief title. In many cases where a person used to be called ‘senior’, they are now being called ‘director’. 

And correct me if I’m mistaken, I assume that this refers to only the job title and not any pay or benefits?

[Cole] Correct. Inflated titles are used in lieu of or in addition to compensation. 

Is “title inflation” something being initiated by organizations? Candidates? Or both? What trends are you seeing?

[Cole} Organizations are using title inflation as a tool to compete for talent. Though, candidates can sometimes demand a higher title. For many years, only bootstrapped startups used these inflated titles to lure talent. Think head of engineering, exaggerated VPs and C-suite titles. Now, with the war for talent in a tight job market, it has become more mainstream. 

When “title inflation” is initiated by an organization, what is the endgame? Is there evidence that this approach is successful?

[Cole] When organizations initiate title inflation, the goal is to win talent. If a candidate has two job opportunities and they both pay the same, but one has a cooler title, the company with the more impressive title wins. This can also be a retention play.  The Financial Times recently reported on an accounting firm that promoted thousands of people to ‘partner’ without offering profit sharing, increasing salary, or adding benefits. 

Now, the organization has a ‘partner’ with a lower case ‘p’ and ‘Partner’ with a capital ‘P’. There’s so much for hiring managers to be aware of.

Speaking of awareness, I can see how employees need to be aware of this as well. I’m wondering, are there any benefits to “title inflation”? 

[Cole] In the short term, companies can benefit by snagging top talent. Employees get to sound impressive in front of their peers. But the downside is steep as businesses begin to realize titles are no longer assumed. Go to a bigger company and you might be a manager. Get too fancy of a title and hiring managers may not want to hire you at all. Titles aren’t assumed or transferable because of title inflation. It’s over.

You’ve started to touch on the downsides to “title inflation”. Are there any other things to consider? 

[Cole] Title inflation disrupts the org chart. You’ll have a hard time demoting people assuming your company grows, and you need to hire people with real qualifications. Employees’ resumes are ruined when they try to leverage their title outside the company that gave it to them.

Last question. How would someone know if they’re being exposed to “title inflation”? And this applies to both the company (if the employee is asking for an inflated title) and the candidate (if the company is offering one).

[Cole] Good question, I think it takes two to tango or as those multi-million-dollar email scams go there is no victim because you both knew it wasn’t true. 

For companies who want to avoid a nasty surprise when their new VP doesn’t have any actual leadership skills, hiring managers should use LinkedIn and look at the background and experience of similar candidates with the same title in the same industry and see how they compare. HR professionals must be aware and ask questions to make sure the title matches the job responsibilities. For example: Are the skills transferable? Who did you report to? Did you manage others and if so, how many people? 

The same goes for the employee. You know if you’re getting a title that doesn’t match your actual duties. If you’re going to be a called a ‘manager’ but have no direct reports and you’re not managing a process, that’s a red flag. 

I want to thank Shawn for taking the time to share what he’s seeing in the job market right now. I think title inflation can negatively impact both organizations and individuals so it’s something we all need to be aware of. 

Title inflation doesn’t mean that you can’t negotiate a job title. It’s a normal part of the process. It means be realistic about what the title represents. What might benefit you in the short-term, could hurt you in the long-term. That goes for employees and organizations alike.

Image captured by Sharlyn Lauby while exploring the streets of Las Vegas, NV

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Build Trust With a Consistent Employee Experience

Estimated reading time: 5 minutes

(Editor’s Note: Today’s article is brought to you by  our friends at Neocase , a provider of cloud solutions for HR transformation. For 20 years, Neocase has been offering solutions to improve the employee experience. They recently announced a new  Employee Journey solution that provides a customizable complete onboarding to offboarding experience . Enjoy the article!)  

One of the things I believe people are craving right now is consistency. For example, when I go to my favorite restaurant, I want a meal that’s as good as the last time I was there. From a consumer perspective, organizations link consistency to their brand and customers connect a company’s brand to the experience they receive.

The same thing applies to employees. Organizations have an employment brand that sends the message, “This is what the employee experience will be like if you work here.” Based on that messaging, candidates apply and get hired. They expect an employee experience that’s consistent with what they were told during the interview. 

Journey Mapping Creates a Consistent Employee Experience

So how can organizations make sure they deliver a consistent employee experience? The answer begins with journey mapping. A journey map is a visual overview of how an employee interacts with the organization. Examples of journey maps might include:

The onboarding experience including preboarding, orientation, and onboarding.Business process automation (BPA) tools such as the process for employee leave of absence paperwork.The performance management process including the manager’s role, employee’s role, and HR’s role.The offboarding experience, including final paychecks, COBRA administration, and rehire considerations.

These are examples of processes we want to be consistent and fair. Organizations use journey maps to ensure that steps aren’t forgotten. Because inconsistency can often lead to misunderstandings and hurt feelings. For instance, when one employee receives a box of new hire welcome swag, but another employee doesn’t. Or when a manager calls an employee while they’re out on leave, but another manager forgets to make a call. 

Now, some people might say, “Oh, those differences are small.” Or “The oversight wasn’t intentional.” And you’re right – in both situations. But it’s not realistic to think that employees won’t notice or be concerned. If the company missed out on the little things, employees would wonder if there were big things they forget too? What else did the company accidentally forget to tell me?

These inconsistencies can hurt trust. It can impact employee engagement. And if another opportunity comes along where the employee feels they will get a more consistent experience, well…maybe the employee will take it. 

That’s why journey mapping can be a valuable tool in creating a consistent employee experience. It allows the organization to intentionally map out – design and document – what should be done. All stakeholders from executives to managers to HR to employees can see their role in the process. And everyone buys into their responsibility in the process. 

One point to note: Creating a journey map doesn’t mean that the process will always be exactly the same every single time. Because sometimes unique circumstances do exist. But those unique situations get handled for what they are – exceptions to the rule. 

Getting Started with Journey Mapping

It isn’t difficult to get started with journey mapping. Our friends at Neocase have put together an online journey mapping template and instruction guide to get you started. The Excel file is downloadable and very intuitive.

I could see putting the template in a shared drive so all stakeholders had access to it. Then everyone could do an initial brain dump with no judgements. Make the goal to just get everything on the template. I liked the online format because it allows stakeholders who are working remotely or in a different time zone to contribute. Then depending on what the document looks like, put together a structured process for reaching consensus and refining the comments.

No denying it could be messy at moments, but journey mapping allows the organization to get everyone on the same page when it comes to executing important strategies – like the employee experience – in a consistent way.

I don’t have to tell anyone that we’ve been seeing voluntary quits at all-time highs. And even if the recruiting market does slow down, the search for the best talent will not. Organizations define themselves by the quality of their employees. They are the people who build a company’s product and deliver a company’s service.

Delivering an exceptional employee experience is necessary for employee retention. And the key to exceptionalism is giving employees consistency.

P.S. If you want to learn more about journey mapping, specifically how to use a journey map to improve employee performance, join me and the Neocase team for a webinar Wednesday, August 3, 2022, at 12n Eastern on “Using Journey Maps to Improve Employee Performance”. I’m really excited about this conversation and hope you can join us! As always, if you’re already booked, sign up anyway and get the recording. See you then!.

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The 3 Things that All Employees Want

Estimated reading time: 3 minutes

I was going through some notes from this year’s Society for Human Resource Management (SHRM) Talent conference and came across one that was really spot-on and succinct. It was from a session with Lorna Hagen, chief people officer at Guild Education. The comment was that people want three things in their work: pay, purpose, and pathways. Here’s how I interpreted the comment.

PAY is the employee value proposition (EVP). I like to define the EVP as what employees receive in exchange for their work. It’s not just compensation and benefits. The EVP includes things like wellbeing programs, flexible scheduling, student loan repayment programs, and more. Employees want a well-thought-out package. From an organizational perspective, the EVP should align with company culture and the employment brand. 

PURPOSE is about performance. Employees want to know that their efforts (i.e., their work) is valuable and contributes to the goals of the organization. This means that HR and the operation need to design work that is relevant. It also means that recruiting, orientation, and onboarding programs should communicate how an employee’s work contributes to outcomes. Purpose is the heart of employee engagement, and we know that engagement has a positive impact on productivity and the bottom-line.

PATHWAYS represent learning and internal mobility. Pathways are the paths an employee can take to turn their career goals into realities. Employees want to know they have a future. They want to know that their performance will lead to rewards and recognition. If an employee wants to move into a more challenging position, they want to know that they’ll be trained for the role and supported by their manager. An article on the SHRM website cited a LinkedIn study that said employees who were promoted have a 70% chance of staying and employees who made a lateral move have a 62% chance. This was versus employees who did not make any kind of move (45%). 

What I liked about Hagen’s comment was that the 3P’s – pay, purpose, and pathways – are easy to remember. They’re easy to convey to managers. Organizations could make them part of a management development program. Are you giving employees the 3P’s? The goal being for managers to buy-into the delivering the 3P’s. 

In fact, Hagen suggested that the ideal way to get managers to buy into the 3P’s was to do “co-creation”. Instead of HR creating programs and then implementing them, when a program needs to be created, HR partners with the operation to co-create it. This is beneficial because employee programs are being designed with the operation in mind. And it’s helpful to the operation to understand logistics from a policy design and implementation perspective. Everyone can learn. The end result is (hopefully!) a policy that is supported and works for everyone. 

Over the months to come, organizations are going to be refining their policies and procedures for a variety of reasons. Maybe to accommodate hybrid and remote work. Possibly to accommodate a changing workforce. Whatever the reason, co-creation could be a good design strategy. And the 3P’s can be a way to guide the conversation. Because creating an experience that employees want is the key to successfully attracting, engaging, and retaining talent.

Image captured by Sharlyn Lauby while exploring the streets of Disney Springs, FL

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5 Ways to Use On the Job Training to Develop Employee Skills

Estimated reading time: 5 minutes

It’s not a surprise that organizations continue to struggle with finding qualified job candidates. One solution that’s often overlooked is to focus on internal mobility and support current employees moving into open positions. This does mean that organizations need to consider building a training and development program that will give current employees the skills to fill current openings.  

A common development activity is on-the-job training (OJT). It’s a hands-on method for teaching knowledge, skills, and abilities (KSAs). OJT uses the physical workplace instead of a classroom as the learning environment. Employees learn what they need and are able to practice in real-time.  

It’s possible that over the past couple of years, organizations have strayed away from OJT because of remote and hybrid work, and it has negatively impacted skill development. Bottom-line: on-the-job training is important. That being said, on-the-job training programs do have challenges. Maybe that’s part of the reason that organizations have moved away from it. But the solution isn’t to reduce OJT, it’s to overcome its challenges. Here are five of the most common OJT challenges along with strategies for minimizing its negative impact.

TIME: On-the-job training programs take time during the operation. It’s a huge advantage to the learner that they are practicing in the actual work environment. They can see their surroundings, hear all the sounds, etc. It can’t be more real. That’s also the downside. Because the operation still needs to run while training is happening.

There’s no rule that every aspect of on-the-job training must be conducted in the actual work environment. Think about OJT training in three parts: demonstration of the skill, practice the skill, and testing for comprehension. It could be beneficial to do the final step (testing) in the work environment. The other two (demonstration and practice) can be conducted in a combination of classroom  / simulation and work environment.  

TRAINERS: OJT is often technical skills training which means it’s conducted by subject matter experts (SMEs). Organizations need to have qualified current employees who can conduct training. If the organization doesn’t have SMEs or if the SMEs lack training skills, then the company is at a disadvantage. 

The company’s on-the-job skills training program is only as good as the trainers. Identify the high performing or high potential employees who would be great trainers. Ask them if they will take on this responsibility. Remember to give them the training they need to be good at the role. 

PRODUCTIVITY: This aligns with #1 (TIME) above. Conducting training during peak operations can be a challenge because it can be a drain on productivity – both organizationally and individually. Understanding the best times and environment to conduct on-the-job training is key. Focus on getting key stakeholders to buy into being available for training during those times. 

There’s no rule that says all on-the-job training must be held during peak operational cycles. It could make sense to ask employees in training to work a different shift or make an adjustment in their schedule – only until the training is completed. And then they can resume their regular work hours. 

ERRORS: We mentioned practice in #1 (TIME) and #3 (PRODUCTIVITY). Practice is part of any successful training program. And during practice, we often make mistakes. On-the-job training is no exception. The challenge happens when mistakes are being made during the normal workday and then to be fixed. This can also be a drain on company resources as well as productivity.

Depending on what the errors are, there might be some opportunity to simply discard them. But in some industries, an error can be significant and take several minutes (or hours!) to correct. Keep in mind, it’s also possible that fixing the error would be an excellent learning experience for the employee. 

CONSISTENCY: There’s a myth that on-the-job training programs are informal training. It’s not true. At least, it shouldn’t be true. On-the-job training programs need to be structured. A lack of structure can result in training inconsistencies which will result in performance, product, or service inconsistencies.  

Organizations can build structure and consistency into their on-the-job training programs using checklists or manuals. Have an employee successfully complete a task, then get a sign-off. Video demonstrations could provide consistency in presenting the task, and the employee can practice after watching the video. 

On-the-job training can help develop employee skills that the organization needs today and in the future. And those training sessions can be done without scheduling classroom training (not that’s there anything wrong with classroom training). The significant benefit of OJT is its ability to take place in a realistic work setting by the subject matter experts who know it best. 

However, finding that exact right mix of when to conduct it and who should do the training will take time. It will also be necessary to document the activity for training and performance management purposes. And finally, it’s worth a discussion to determine if there’s an opportunity to turn mistakes into learning moments.

Organizations have a huge opportunity to develop employees using programs with a proven reputation for success such as on-the-job training. All it takes is a clear understanding of the operation where training would take place and the skills necessary for success.

Image captured by Sharlyn Lauby while exploring the streets of Las Vegas, NV

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The Candidate Experience Matters Regardless Of the Labor Market

Estimated reading time: 5 minutes

(Editor’s Note: Today’s article is brought to you by  our friends at Criteria , a company dedicated to helping organizations make objective, evidence-based talent decisions that reduce bias and drive better outcomes. Check out this article from Criteria CEO Josh Millet on “ Evolving Recruiting Investments in the Age of Hybrid Work ”. And enjoy the read!)

Some organizations might be looking at the business headlines saying, “Oh, the layoffs are coming!” or “Sadly, we’re doing a hiring freeze.” and decide that they don’t need to spend any focused energy on the candidate experience. That would be wrong. Regardless of what’s happening in the labor market, the candidate experience matters. 

Just as a quick reminder, the candidate experience reflects how a person feels about the company’s hiring process. It includes all the touchpoints in the process, not just the interview. This means the candidate’s experience includes an individual’s interaction with the company’s applicant tracking system (ATS). It also includes the conversations with HR, the hiring manager, and possibly co-workers. And it refers to the candidate’s experience with partner companies that provide hiring related services, like drug screening and assessments. 

The candidate experience will always be important. Because whether you’re hiring one person or a hundred people, it matters. Now is the perfect time to be evaluating and improving the candidate experience. Because a poor candidate experience translates into fewer hires and can negatively impact the bottom-line.

I’ve mentioned before a well-known case study from Virgin Media that talks about how a bad candidate experience cost the company $5M annually. While the case study is a few years old, it shows the connection between the candidate experience, customers, and profits. 

Our friends at Criteria recently released a Candidate Experience Report that’s worth a download. Over time, candidates have become much savvier about evaluating employers and they have elevated expectations. I don’t want to give the entire report away, but here are a few takeaways that caught my attention about what candidates want (and don’t want) in their hiring experience.  

4 Signs of a Sub-Par Candidate Experience

Negative reviews. Job seekers do not want to waste their time and will do their homework about the company before applying. Too many negative reviews will cause a person to pause before filling out that application. In the Criteria report, 36% of respondents said they’ve abandoned a hiring process after hearing negative reviews. 

Lack of transparency about pay and benefits. Another thing that candidates don’t want to waste time with is an employer that doesn’t have a competitive pay and benefits package. Frankly, organizations also don’t want to waste time with candidates they can’t afford. 82% of candidates prefer job postings that include salary information. The expectation is that organizations will discuss pay ranges and benefits – like workplace flexibility – early in the hiring process.

Poor communication. Speaking of discussions, candidates expect to receive regular communication about their status in the hiring process. 53% of survey respondents have abandoned a hiring process due to poor communication. And, if a candidate is no longer being considered, that’s fine, but let them know. Companies don’t want to get ghosted, so don’t ghost a candidate.

Hiring processes that takes too long. Companies don’t have to hire people on the spot, but organizations need to have a reasonable time frame for hiring. And the process should be efficient. 32% of respondents have abandoned a hiring process because it was taking too long. Candidates expect any delays in the process – and they do happen – should be communicated. 

3 Strategies for Improving the Candidate Experience

There are lots of activities that organizations can do to improve the candidate experience. Let’s start with three that every company should be doing anyway as part of their recruiting strategy. 

Have a clearly defined employee value proposition (EVP). I can’t stress this enough! The EVP is what organizations offer employees for the work they do. Organizations should create an EVP that aligns with the company culture. Make it internally fair and externally competitive. Communicate it well…and often. Audit your recruiting process. Streamline where necessary. Keep steps that bring value to the process. For example, 94% of survey respondents said that they felt assessment scores demonstrate their ability to succeed in a job. Get buy-in from the recruiting team. I’m a big advocate for treating the group of people who handle hiring as a team. Give them the proper training to collaborate, problem-solve, make decisions, etc. – like a team. That includes letting them have a say in how the process is going to work. Create buy-in for their role in the candidate experience.  The Talent Market Will Remain Competitive

It might be very tempting to slow down recruiting right now, which is exactly why you shouldn’t. Organizations have an opportunity to examine their processes and make sure they’re delivering what candidates expect. Because that’s how the organization can recruit the best employees. 

Speaking of candidate expectations, one thing we didn’t discuss in today’s article was what candidates want in a job. Join me and the Criteria team for a webinar on “What Job Candidates Want, and How to Give it to Them”. It’s scheduled for Wednesday, July 20, 2022, at 10a Pacific / 1p Eastern. And if you’re already booked that day, sign up to get the recording. We hope to see you then. 

Oh, and P.S. don’t forget to check out Criteria’s new Candidate Experience Report I mentioned earlier. 

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8 Employee Benefits Worth Considering to Attract and Retain Talent

Estimated reading time: 4 minutes

Even though we are hearing conversations about layoffs and recession, that doesn’t mean organizations aren’t having challenges finding qualified employees. In all my years in HR, attracting and retaining talent has always been a top priority. 

During this year’s Society for Human Resource Management (SHRM) Talent conference, I had the opportunity to hear Jeanne Sutton talk about employee benefits strategies. She introduced this conversation by pointing out that the average candidate has 2-3 job offers to choose from, so maintaining a competitive benefits package is important. 

She also reminded us that with the large number of open jobs nationally, an employer’s goal should be to attract people who have left the workforce (i.e., possibly parents and retirees). Here are a few benefits she mentioned:

Summer Fridays. Prior to the pandemic, one of the trends that businesses were implementing was a “summer” schedule. It might have included working a shorten schedule or remotely on Fridays. Maybe it involved a relaxed dress code. Organizations that are trying to bring back a bit of a pre-pandemic vibe as an employee benefit, might want to consider resuming a summer schedule. 

Daily pay or gig pay. Another trend that was gathering attention prior to the pandemic was the option of daily pay. Employees can request their pay at the end of their shift. This was also being extended to gig/contract worker. Pay flexibility can be a huge advantage. 

Holiday pay. Speaking of pay, many organizations have a waiting period for employees to receive holiday pay. Does it make some sense to waive the waiting period? Start paying holiday pay from day one as an employee benefit. Your organization can do the math and figure out how much of a financial impact this would have. It could be that the benefits outweigh the cost. 

401(k) plans. Employers don’t necessarily have to offer new benefits to be competitive. They can consider updating existing plans. For example, companies can shorten vesting requirements to their 401(k) plans. They can encourage rollovers and possibly waive matching requirements. 

Student loans. One of the first things that might come to mind when we hear student loans is that this is a young person’s problem, and they have plenty of time to pay off their loans. Sutton mentioned in her session that an increasing amount of student loan debt actually belongs to parents who took out loans to pay for their kid’s education. That debt could be an obstacle when it comes to someone’s overall financial planning.

Reproductive health care. This is a front-page subject right now. Some organizations have updated their policies to include reproductive health care procedures like in vitro fertilization (IVF) and abortion. Your organization should decide what’s best. 

Psychedelic-assisted therapy. In addition to reproductive health, some organizations are exploring psychedelic therapy as an alternative to traditional medicine in employee benefits. Psychedelic therapies have been mentioned in treatment for depression and anxiety. With the emphasis on employee mental health and wellbeing, some organizations like the soap maker, Dr. Bronner’s, are pledging millions of dollars. 

Phased retirement. Speaking of financial planning, individuals might be looking for some options when it comes to their retirement strategy. Either coming back into the workforce for a few years or gradually exiting the workforce over time. Organizations have a real opportunity to attract and retain workers if they’re able to deal with open conversations about retirement planning. 

The point of this list isn’t to say that you absolutely must implement these benefits or risk losing candidates and employees. It is to challenge us to think about the purpose of an employee benefits package – which is to attract and retain employees. If your current package doesn’t do that, maybe it’s time to think about what would get employees excited.

Also, one more thing. Making changes to an employee benefit program can be tricky. I would advise organizations to bring in experts to help manage the process. I wrote a couple of articles a while ago on the “implications of legacy benefits” and “considerations when eliminating benefits”. They might offer some insights. 

As the business world changes, employee benefits are going to change along with it. Ultimately, the company’s benefit package should align with the culture. What do your benefits say about you as an organization? Are they in sync with modern times? 

Image captured by Sharlyn Lauby after speaking at the Flora Icelandic HR Management Conference in Reykjavik, Iceland

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Organizational Values and Culture Should Include Flexibility

Estimated reading time: 3 minutes

Many organizations cite flexibility as being an important quality. And for good reason. Flexibility is the key to successfully adapting to a changing business environment. When the business world changes, we have to be prepared to change with it.

Some organizations value flexibility so much that they promote it in their marketing such as “Have it your way!” or “special orders don’t upset us”. The point being that organizations want customers to believe that they are flexible. 

It only makes sense that organizations placing a value on flexibility will want to have flexible employees. If the organization doesn’t currently have a lot of flexibility, it can work with employees to improve their flexibility skills. That might involve coaching employees to handle change more effectively or positively. Because flexibility and change go together. 

But the reason I’m spending this time talking about flexibility is because it makes no sense to tell the world that the organization values and demonstrates flexibility with its customers and then doesn’t do it with employees. I’m talking about organizations expect employees to be flexible but then don’t want to be flexible back. It’s a huge disconnect. And it has an impact on employee trust. 

At this year’s Future of Everything conference hosted by The Wall Street Journal, one of the speakers mentioned workplace flexibility in the context of onsite / remote / hybrid work. I forget the exact words, but it was something like “It’s not about onsite, hybrid, or remote work. It’s about offering flexibility.” It made me wonder if the conversation about hybrid and remote work is almost becoming too rigid and that we’re forgetting about being flexible.

I totally understand that some work needs to be completed in a specific place or at a certain time. That’s fine. But not all work has an assigned location or a deadline. So maybe instead of spending our time focused on where the employee is located and what time they arrive or depart, we should focus on giving the employee the tools and flexibility to get the work done. Wherever and whenever it works for them. Just do the work well.       

Then, organizations are truly focused on flexibility – with both customers and employees. 

Companies that really value flexibility and proclaim it’s important will build flexibility into their core values. Not just for customers, for everyone. They will ask candidates questions about flexibility during interviews like “Describe a time when you showed flexibility at work.” Managers will discuss flexibility during one-on-one meetings such as “If you could change one thing about your current role, what would it be?” Employees will be given the proper training and tools, then be supported to get the work done.  

This isn’t exclusive to hybrid and remote work. Even in organizations where the majority of employees work onsite, flexibility is still important. Managers do not have time to micromanage their teams – nor should they. 

Managers need to be in a position where they can confidently delegate the work and know employees are well trained to get it done on time and at the agreed upon quality standard. They also want to know that if something out of the norm occurs, employees are comfortable coming to them to discuss options. Organizations that don’t create flexible workplaces run the risk of wearing out their management teams. This isn’t good for managers, employees, or the company.  

In all of our talk about employees and the future of work, we can’t forget the role of flexibility.

Image captured by Sharlyn Lauby after speaking at the Flora Icelandic HR Management Conference in Reykjavik, Iceland

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Employers Need to Consider Long COVID and the Workforce

Estimated reading time: 10 minutes

One of the things that we’re just starting to hear more about is “long COVID” or “post-COVID conditions. I saw an article on the American Management Association (AMA) website estimating at 10%-30% of patients might experience long COVID after recovering, even if they don’t think they were very sick in the first place. 

Post-COVID symptoms can include breathing problems, extreme fatigue, and cognitive and memory issues. And according to the latest research, these symptoms can last up to a year. In an article published in The New York Times, Dr. Ziyad Al-Aly, chief of research and development at the V.A. St. Louis Health Care System and a clinical epidemiologist at Washington University in St. Louis shared that this new information about long COVID “can potentially translate into millions of people with new diabetes, heart disease, kidney disease, and neurologic problems. These are lifelong conditions — certainly manageable, but not curable conditions.”

While the news might be reporting that the pandemic phase of COVID is behind us, for some people, they’re stilling dealing with the symptoms. It’s possible that an employee who had COVID might ask for their work to be modified in some way. 

I’m not aware of any specific legislation that protects individuals who have long COVID, but there are laws in place that protect employees when they are sick, recovering, or need accommodation. So, employers need to think about these scenarios now because that way, they have some process in place.

Which is exactly why I asked my friend and labor attorney Carrie Cherveny to join us for a conversation about long COVID and what employers should know. Carrie is senior vice president of strategic client solutions in HUB International’s risk services division. In her role, she works with clients to develop strategies that ensure compliance and risk mitigation when it comes to insurances such as health and welfare programs and employment practices liability. Carrie has been helping us throughout the pandemic to understand the matters that organizations need to consider.

And while Carrie is a lawyer, please don’t forget that her comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed COVID questions, they should be addressed directly with your friendly neighborhood labor and employment attorney.

Carrie, thanks for helping us with this topic. Let’s get right to the matter. Does long COVID meet the description of a “serious health condition” under the  Family and Medical Leave Act (FMLA) ?

[Cherveny] It depends. Employers must remember the foundational requirements of the FMLA. The employer must go through the FMLA process when an employee experiences a condition that impacts their ability to work (whether on a consistent or intermittent basis). This means that the employer should follow the Department of Labor’s (DOL) FMLA roadmap. This includes: 

(1) informing the employee of his/her eligibility for FMLA; 

(2) assessing the employee’s health condition from the lens of the FMLA; and 

(3) making an FMLA determination. 

We always recommend employers utilize the certification forms provided by the DOL. For example, an employee experiencing long-term symptoms of COVID may require regular breathing treatments and physical therapy necessitating intermittent FMLA. Under these circumstances, the employer should provide the employee with the Notice of Eligibility & Rights and Responsibilities along with Certification of Health Care Provider for Employee’s Serious Health Condition. In more serious cases, an employee may be required to spend the night in the hospital. 

Likewise, an employee may be providing care for an immediate family member with long-haul COVID and may be eligible for FMLA to provide that care. In the case of a family member, the employer would provide the same eligibility form but instead include the Certification of Health Care Provider for Family Member’s Serious Health. What’s important here is that the employer follows FMLA steps to arrive at a determination. 

You mentioned certification forms. It makes sense that if an employee brings up that they are experiencing symptoms of long COVID, an employer can request a doctor’s certification. But what about when an employee calls in sick for COVID reasons? Can the employer require a doctor’s note for them to return to work? Are there any other requests that the employer might want to consider?

[Cherveny] Employers may require a health care provider’s release to return to work but this requirement should be consistent for any employee serious health condition. In fact, the FMLA provides:

An employer may have a uniformly-applied policy or practice that requires all similarly-situated employees who take leave for their own serious health condition to obtain and present certification from the employee’s health care provider that the employee is able to resume work as a condition of restoring an employee. This fitness-for-duty certification can be requested only for the health condition that caused the employee’s need for FMLA leave. Certain limitations apply to the frequency with which an employer may require a fitness-for-duty certification for absences taken on an intermittent or reduced schedule basis. 

The FMLA approach (uniform requirement for a fitness for duty) is the recommended approach for all return to work (even those that are not FMLA eligible) after an employee absence for their own injury or illness. Meaning, HR should not apply different return to work requirements for particular employees or conditions. If an employer is going to require a release for work, it should do so consistently for any employee that takes a leave of absence for their own medical condition. 

Is an employee able to make a workers’ compensation claim related to long COVID?

[Cherveny] This is another ‘it depends’ answer. Under certain circumstances, claims from health care providers and first responders may be allowed. Additionally, employees’ claims may be compensable if they can provide medical documentation demonstrating that their condition falls within the scope of the individual state’s and/or policy’s definitions of illnesses. Each claim will be reviewed upon its own merits. Some of the factors that will be reviewed to determine compensability will be whether the disease is ‘arising out of’ the course and scope of employment and/or whether it contracted due to conditions peculiar to the work.

Generally, coverage is specifically aligned with state and jurisdictional guidelines. Depending on the state, ‘arising out of’ employment generally requires a causal connection between the injury and the employment, whereas ‘in the course of’ employment refers to a causal connection to the workplace and looks at the time, place, and circumstances under which the illness occurred. Across National Council on Compensation Insurance (NCCI) states, ‘course and scope’ statutes generally applies as providing compensation for personal/accidental injury arising in and out of employment and occupational disease arising in and out of employment.

Much like the FMLA and the Americans with Disabilities Act (ADA), each workers’ compensation claim will be evaluated on its own merits and subject to each individual state’s COVID-19 compensability requirements. 

Speaking of the ADA, can an employee ask for an accommodation based on long COVID under the  Americans with Disabilities Act (ADA) ? If so, what would be an example of a reasonable accommodation?

[Cherveny] An individual experiencing more severe and/or long-lasting symptoms from COVID-19 may qualify for an accommodation under the ADA. But how can HR determine whether an employee is experiencing COVID long-hauler symptoms that interfere with their ability to perform the essential functions of the job? In other words, when does a COVID long-hauler become eligible for the rights and benefits of the Americans with Disabilities Act? To begin with, HR professionals should engage in the ADA ‘interactive process’. The interactive process is simply a cooperative and collaborative case-by-case assessment to assess the employee’s circumstances and the requirements of the ADA. In general, employer’s duty to engage in the interactive process requires:

To do more than remain passive (simply answer specific questions by employee is not enough)Take initiative and clarify what accommodation is requiredEngage in a meaningful and direct conversationNo breakdown in the process by any of the partiesSeeking reasonable documentation to establish the need for accommodation (medical documentation may be required, limited religious inquiry may be made). An employer cannot ask for documentation when: the disability and the need for reasonable accommodation is obvious, or the individual has already provided the employer with sufficient informationExplaining to employer why provided documentation is insufficientExploring alternative accommodations when initially offered accommodation is rejected by an employeeSpending time on the process and documenting efforts to accommodate

The limitations from COVID-19, like other disabling conditions, do not have to last any particular length of time to be substantially limiting. For example, if the individual experiences episodic symptoms (meaning they come and go) the individual may have an actual disability if it substantially limits a major life activity when active. For example, an individual diagnosed with COVID-19 who experiences ongoing and/or intermittent headaches, dizziness, ‘brain fog’, and/or breathing issues, may be substantially limited as to major bodily functions and/or major life activities. Likewise, an employee with these symptoms may not be able to perform the essential functions of their job without an accommodation. For instance, a server in a restaurant who is short of breath may not be able to work lengthy shifts or carry heavy trays. However shorter shifts and a food-runner may be an appropriate accommodation based on the employee’s facts and circumstances.

Under the ADA, employers cannot consider mitigating measures when determining whether COVID-19 substantially limits a major life activity. This means that the employer must consider the symptoms without the benefit of medications or other measures to lessen their impact on the employee. 

Long-haulers may also be eligible for short and/or long-term disability insurance wage-replacement benefits. If the employee’s symptoms prevent the employee from working in either their own job or any job, disability insurance may provide some portion of wage replacement benefits for a pre-determined period of time. Much like the ADA, the disability benefits determination is made on a case-by-case basis and requires an assessment of the employee’s condition. The terms of insurance policy will dictate whether, based on the employee’s medical circumstances, benefits eligibility exists under the disability insurance program. 

Last question. From personal experience, I know what it feels like to return to the workplace after an accident and have to navigate with my coworkers in terms of what I was able and unable to do. Right now, employers are trying to figure out the best way to bring employees back onsite. If an employee is returning to the worksite and they are unable to do everything they used to do, what suggestions do you have for employers about how to respectfully redistribute the work without breaking confidentiality rules?

[Cherveny] It’s important to remember that employee medical information is confidential and protected by the ADA. This means that only those who need to know may be made aware of the employee’s medical condition. The ADA construes ‘need to know’ very narrowly. Generally, HR may know employee confidential medical information, and under some circumstances, the employee’s manager or supervisor. This means that conversations with coworkers about the redistribution of duties must be limited to the duties themselves and not an employee’s underlying health condition. 

Employers will have to carefully navigate the job reassignment discussion and citing neutral reasons such as business needs, organizational objectives, and cross-training opportunities. Likewise, the evolution of workforces to hybrid/remote has necessitated job assignment changes. These changing work environments provide a neutral backdrop for a job accommodation redistribution of duties without revealing confidential medical information. 

Often, the employee experiencing the medical condition will share it with co-workers. Under those circumstances, the employer has not violated any privacy rules because the employee chose to share their own medical information. 

I want to extend a huge thanks to Carrie for sharing her knowledge with us. If you’re looking for a resource to help your organization maneuver through the pandemic, be sure to check out the HUB International COVID-19 Resource page.

I understand that today’s article has a lot of information to unpack. It’s exactly the reason that organizations need to think about what they will do if an employee is experiencing post-COVID symptoms. Maybe some organizations are already dealing with this. While restrictions are relaxing, that doesn’t mean cases are. HR departments need good information to help the organization make the right decisions – for the business and their employees.

Image captured by Sharlyn Lauby while exploring the University of Florida in Gainesville, FL

COVID FMLA roadmap courtesy of the Department of Labor – Employers Guide to FMLA

The post Employers Need to Consider Long COVID and the Workforce appeared first on hr bartender.

Being a Better Ally Is Not About You

Estimated reading time: 9 minutes

I recently saw an article in Human Resource Executive online that shared “More employers add Juneteenth as a paid holiday this year”. I think this is great. I love the discussion about the significance of Juneteenth as a day of remembrance. 

But at the same time I was happy about Juneteenth being recognized, I saw an article in Harvard Business Review titled “Don’t Let Your Calendar Dictate Your DEI Initiatives”. And I could see the point, we want to be a good ally all year long, not just during a designated day, week, or month. 

I believe that organizations – and individuals for that matter – are trying to become better allies, but don’t always know the best way to do it. So, I thought it would be great to share some practical suggestions for being a better ally for workplace diversity and inclusion. 

To help us understand a little more, I reached out to friend and colleague Eric Peterson, MSOD, an educator and speaker on inclusion and diversity. I’ve known Eric for years and always appreciated his practical approach to issues. I’m thrilled that he agreed to share his knowledge with us.   

Eric, thanks so much for being here. As I mentioned, many organizations want to be an ally. I can’t help but think that organizations and individuals would be better at it if they knew their “why”. I know that’s an overused phrase, but is that a good place to start? And if so, how can organization’s find their “why” when it comes to being a better ally?

[Peterson] I agree; I think it’s an excellent place to start. And, this is a question it’s possible to get wrong. Unfortunately, I think most organizations will find their ‘why’ in their balance sheets. They believe that by having a reputation for allyship will improve their brand and increase their revenues. And while that might certainly happen, it can also backfire. 

Marginalized people (both employees and customers) will often sense when an organization’s ‘why’ has nothing to do with honoring their humanity. This was especially apparent recently when Wal-Mart made an embarrassing and costly mistake by issuing a ‘Juneteenth’ flavored ice cream. It was very clear that this holiday, which has been observed by the Black community for over a century, was just another three-day weekend to anyone who worked on that product launch. So, if your ‘why’ is misplaced, it’s liable to cost you in some way. 

We’ve mentioned Juneteeth a couple of times. There have been other recognition events / holidays recently like Pride Month, Black History Month, and Asian American and Pacific Islander Heritage Month. I think it’s great that we have these events because we can use them as opportunities to learn more. But I also feel like we should be learning all the time. How can organizations keep the spirit of these events in our minds for more than a day or a month?

[Peterson] First of all, I want to be very clear: there is absolutely nothing wrong with recognizing calendar events like the ones you mention. But those are items for your marketing and branding folks, or perhaps your internal communications team. HR and Diversity practitioners need to be looking at policies, programs, and culture. They should be using the calendar-based events to highlight their work or announce new strategies, but not much more. No Black employee, for example, wants to work for a company that only seems to appreciate their value in February.

Let’s continue this conversation about events. Another aspect that I’d love to get your thoughts on is how we celebrate. For instance, many organizations during Pride Month post rainbows. I’m not anti-rainbow, but is posting a rainbow really enough? I assume not. If organizations are truly serious about their allyship, what should they be doing? 

[Peterson] As a gay man myself, I love a rainbow flag. Seeing it helps me feel seen in a way that’s very profound. 

And, an organization that turns their corporate logo into a big rainbow every June for Pride Month but doesn’t offer trans-inclusive healthcare in their benefit packages doesn’t have nearly as much credibility to my mind as an organization who ‘walks the walk’, so to speak. I’m a Netflix subscriber, and I love the way LGBT films are highlighted with their own special section every June. But it’s also clear to me that those films don’t go away in July; they’re still available to me in September when the movies that celebrate Hispanic Heritage Month are grouped together on the top of my Home screen. Netflix has found a way to use the calendar to show all their subscribers their commitment to entertain a diverse customer base all year long.

I’m going to play contrarian for a moment. I can see some organizations saying that they don’t want to participate in recognition events because they’re afraid they’re going to miss a celebration. Like “We posted something for Black History Month, but we forgot National Hispanic Heritage Month! Maybe we need to stop doing these recognitions because we’re going to hurt someone by accidentally forgetting them.” How do we help organizations genuinely focused on being a better ally?

[Peterson] There’s always next year. If your Hispanic/Latino employee base is important to you (Hint: the correct answer here is “yes”), and if your Hispanic/Latino customer base is a significant one (either “yes” or “potential yes”), then make some plans for next September and October now. BTW – Hispanic Heritage Month is celebrated between September 15 & October 14.

But again, if your focus on these valuable employees and customers doesn’t matter to you outside of Hispanic Heritage Month, you have much bigger problems than forgetting to honor the month. In fact, you might be better off postponing your festivities until the year after next until you have a story to tell that you’re proud of. 

What do your Black and Hispanic employees need to experience equity and belonging at your organization? What could they get from your competitors that they don’t get from you? Why should Black and Hispanic customers choose you over the competition? Why are so many of them choosing your competition over you? 

Those are the questions HR and DEI needs to focus on.

Last question. I know you do a lot of diversity and inclusion training and workshops. Should organizations consider allyship as part of their DEI initiatives? If so, do you see it being addressed in the context of a program? Meaning is it a standalone program or something that’s woven into all aspects of DEI…or a bit of both? 

[Peterson] There are some very progressive DEI practitioners who don’t like to talk too much about allyship; they say that it centers on the person with privilege rather than the marginalized person in need of equity. I can appreciate that viewpoint, but I also believe that there are lots of well-intentioned folks in our workplaces who want to be better allies to people of color, women, LGBT people, people with disabilities, etc., and simply don’t know how. 

I think that teaching allyship behaviors in organizations is a great idea, especially if the behaviors stress the fact that allies don’t hog the spotlight, but rather amplify the voices of others. Being an ally is not about calling attention to oneself but increasing opportunities for all (but especially those for whom opportunity is typically denied). 

If an organization used Pride Month to remind folks to respect others’ pronouns and refrain from asking transgender colleagues inappropriate questions, that’s great. If Black History Month was used to remind people that natural hair styles are just as ‘professional’ as any other, fine. If your organization’s core values include words like ‘diversity” or ‘respect’, defining those words with observable behaviors is a great idea, and using the performance assessment process to give feedback on those observable behaviors is even better. 

The truth is, every employee in your organization has some kind of privilege, and could become a better ally to someone with a bit of awareness and practice – so no, I don’t think helping your people on that path is ever a bad thing.

Okay, I lied. Just one more question. When we started this conversation about allyship, we did not have  the U.S. Supreme Court decision on Dobbs v. Jackson Women’s Health Organization . I can see people wanting some guidance about being an ally right now – in the context of legislation and the law. If you were doing a training session right now and the topic came up, could you share 1-2 suggestions that would be helpful?

[Peterson] Since the Dobbs decision was published, several of my friends who live in blue states have been wondering what they can do, individually. Many are thinking about letting women who need to travel to get reproductive healthcare a free place to stay and are wondering if they should set up an Airbnb account. So … Airbnb, if you’re listening — helping my friends offer their homes to women in need is something you could do, if you choose to. 

I’ve heard of organizations that, ever since the Dobbs document was first leaked, communicated to all staff that reproductive healthcare would be covered no matter what happens to their benefit plan. Others have informed their staff that they will cover all travel expenses incurred in order to obtain an abortion, for staff who work in states where abortions will be banned. 

Of course, one thing that all organizations could do is stop supporting anti-choice candidates for political office and send their money only to those who support a woman’s right to choose. Of course, these actions would not only demonstrate allyship, but they would also make good business sense, as employed adults would prefer to live in a state where abortion is legal and accessible, and women who do not have access to abortion care are three times as likely to leave the workforce. But so often, the values case of diversity and business case point to the exact same behaviors, and that is certainly the case here.

I want to thank Eric for sharing his knowledge and insights with us. If you want to contact Eric about diversity and inclusion education, the best way to reach him is via LinkedIn. 

My big takeaway from today’s conversation with Eric is being a good ally is about action. From an organizational perspective, that means companies need to have policies that support their talk about the importance of DEI. And on an individual level, it means the same thing. It’s great to post frustrations on social media about injustices. I’m not saying you should stop. But it also means backing up the talk with action when it comes to getting involved in the political process. Do your homework. Get educated on the issues. And go vote!

Image captured by Sharlyn Lauby while exploring the streets of Gainesville, FL

The post Being a Better Ally Is Not About You appeared first on hr bartender.

Organizations: State Laws Can Impact Your Hybrid and Remote Work Strategies

Estimated reading time: 14 minutes

(Editor’s Note: Today’s article is a bit longer than usual. So go grab your favorite beverage and take your time reading this one. Because it’s important.)

I don’t talk about state legislation much on HR Bartender because … well, because state laws only impact a relatively small number of people. Well, at least that’s what I used to think. State laws are becoming important to monitor for two reasons:

The growing number of hybrid and remote employees. As more employees have the flexibility to work anywhere, it means that companies need to understand the laws of the state where an employee works and lives.Some states are becoming a bellwether for other states. Regardless of your politics, we’re starting to see states implement legislation while other states watch what happens and possibly follow suit. 

It’s because of these two reasons that I want to share with you a new piece of legislation that will take effect in Florida on July 1, 2022. The Individual Freedom Act (IFA) is an amendment to the Florida Civil Rights Act (FCRA). This law has implications for employers and employees in Florida. And I’m not going to sugarcoat it, some states might consider Florida a bellwether when it comes to legislation. 

This specific piece of legislation is worth paying attention to because it basically says that subjecting an individual to lessons or learnings that promote, advance, or compel someone to believe discriminatory concepts is unlawful discrimination. The law goes on to specify discriminatory concepts to include things like a person’s status as privileged and a person receiving adverse treatment to achieve inclusion. 

To give you some sense of this legislation, I spoke with Mia C. Larson, labor and employment associate at Buchanan Ingersoll & Rooney PC based in Tampa, Florida. Mia focuses her practice on providing a full range of labor and employment counseling and litigation services including state and federal regulatory compliance, employee benefits, labor relations, tax and change management, and employment litigation.

Since Mia is a lawyer, please don’t forget that her comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor and employment attorney.

Mia, thanks so much for being here. As an HR professional, one of the first things I try to do when I hear about new legislation is understand “Does this apply to me or my organization?” So, let’s start with some definitions. And I understand that these definitions might evolve over time, but let’s talk about what we believe they are right now.  

First, I know a component of  Florida’s Individual Freedom Bill (HB.7)  applies to employment situations. With the popularity of remote and hybrid work, I could see organizations wanting to know if this bill only applies to Florida based organizations OR any organization with employees in Florida?

[Larson] Since the Individual Freedom Act (IFA) amends the Florida Civil Rights Act (FCRA), it appears that any employer that is subject to the FCRA will be subject to the IFA. The FCRA defines an ‘employer’ as any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. 

The more intricate part of this question is whether the FCRA applies to organizations that are not based in Florida, but have employees who work in or are residents of Florida. The Eleventh Circuit directly addressed this question in Sinclair v. De Jay Corp., 170 F.3d 1045 (11th Cir. 1999). In Sinclair, the Eleventh Circuit held that the FCRA definition of ‘employer’ does not require that all fifteen employees be employed in Florida. If Sinclair is applied, an organization is considered an employer for purposes of the FCRA (and thus the IFA) if the organization has 15 or more employees anywhere in the country, regardless of how many of those employees are physically located in Florida. 

You are correct that remote and hybrid work may make this analysis even more complicated. Generally speaking, if an organization has 15 or more employees, and at least one of those employees is either physically present in Florida or is a Florida resident (including Florida employees who work remotely), then that organization can be considered an employer for purposes of the FCRA and, therefore, for purposes of the IFA. In the words of the Eleventh Circuit, ‘the plain and unambiguous language of the FCRA requires only that an employer employ fifteen persons to qualify as a statutory employer under the FCRA. It says nothing about where the employees must work.’ Sinclair, 170 F.3d at 1048.

So, in the context of determining which employees should be counted towards the fifteen-person requirement for an organization to qualify as a statutory employer, the IFA will likely apply to any employer with 15 or more employees (nationwide), at least one of whom is a Florida resident or physically present and working in Florida, regardless of how many of those employees are actually protected by the FCRA. 

The bill also refers to “instruction” in the workplace. Is that only formal classroom training? Employees learn many different ways including online, reading, mentoring, coaching, etc. 

[Larson] The IFA specifically prohibits employers from subjecting any individual, as a condition of employment, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels the individual to believe any of the concepts specified in the law. The phrase ‘or any other required activity’ indicates that the IFA is not intended to be limited to formal classroom training. Instead, the IFA appears to prohibit employers from mandating employees to undergo any required activity, whether that activity is an online curriculum, required reading, mentor-mentee relationship, coaching program, or otherwise, if the activity has the effect of promoting any of the specified concepts. 

The emphasis of the IFA is not on what format the employer uses to present information to employees, but rather on whether the employer chooses to in any way promote one or more of the specified concepts.

Good point about distinction between format and content. Let’s take that one step further and talk about conferences and professional development events that might be paid for by the organization, but they don’t control the content. For example, if I live in Florida and the company sends me to a conference in another state? Or if I’m from another state and attend a conference in Florida?

[Larson] These are questions that the IFA does not directly address, and that will need to be answered over time, assuming the IFA takes effect as planned on July 1, 2022. However, it appears that if an employer sends employees to a mandatory conference that promotes any of the specified concepts, the employer runs the risk that it may be violating the IFA. By contrast, if an employer sends employees to a mandatory conference that does not promote, but objectively presents information regarding the specified concepts, then there would not appear to be any IFA violation. Likewise, if an employer gives employees the option to attend the conference described in either of the first two scenarios but does not make attendance a condition of employment (i.e., there is no consequence for employees who choose not to attend), then there would not appear to be any IFA violation. 

Note, however, that the IFA does not shed much light on what would be considered an ‘objective manner’ of providing a training or instruction on the specified topics such that the training or instruction would fall within the purview of the IFA’s safe harbor provision. Moreover, there may be additional wrinkles to this analysis, particularly if the employer does not (or cannot) control the contents of the conference. For example, what if the host of the conference (not the employer) unexpectedly says something that could be construed as promoting one of the specified concepts? Is the employer on the hook for that? Likewise, is allowing employees to attend a conference but stating that the employer does not endorse the content adequate to comply with the IFA?

The best practice under the IFA appears to be that any employer-facilitated discussion of the specified concepts that is part of a training, instruction, or other required activity must not endorse any of the concepts specified in the IFA. If the training, instruction, or other required activity endorses one or more of those concepts and is mandatory, then the employer runs the risk that it may be committing an unlawful employment practice under the IFA. 

Currently, many organizations have made public statements and put programs in place to show that DEIB(elonging) and DEIBJ(ustice) are important values for them. Do they need to consider re-evaluating their positions and programs considering this new legislation? 

[Larson] This is certainly top of mind for employers evaluating how to comply with the IFA. This also seems to be one of the reasons behind the current lawsuit challenging the constitutionality of the IFA on First Amendment grounds. The IFA does not explicitly prevent employers from publicizing policies and positions on diversity, equity, inclusion, or related topics. If it did, there would probably be a much clearer case for allegations of First Amendment violations.

Instead, the IFA prevents employers from imposing the specified concepts on employees. One question is where exactly the line for impermissible activities is drawn. 

Does distributing an employee handbook containing an anti-discrimination policy run afoul of the IFA if employees are required to sign the handbook? Does the phrase ‘other required activity’ refer more narrowly to activities like trainings that affirmatively present and endorse the specified concepts? 

These are tough questions, and there isn’t a lot of guidance to be taken from the language of the IFA. Such ambiguities are one of the grounds upon which the constitutionality of the IFA is currently being challenged in federal court.

Are there some steps that organizations should take to make sure that their current learning and development offerings are in line with legislation?

[Larson] First, organizations should read and become familiar with the legislation. 

Second, organizations should pay close attention to any legal challenges or changes to the IFA that may occur over the next few months. 

To that end, organizations should consider consulting legal counsel or industry human resources groups regarding their current employee trainings, instructions, and other required activities to determine what changes, if any, should be made to comply with the IFA. For example, it may make sense for some employers to make their trainings that discuss one or more specified concept optional, so that employees who do not wish to attend can opt out of attending (without consequence). For other employers, it may make more sense to keep these trainings mandatory, but review the contents to make sure there is no endorsement of any specified concept, and that any information relating to those concepts is presented in a purely objective manner. 

Of course, the extent to which employer trainings on concepts such as unconscious bias can be objectified is a difficult question. It also may raise issues for certain employers covered by federal laws or other contractual terms that require trainings on diversity and may also restrict or require certain types of content to be included in those trainings. 

Ultimately, an organization trying to comply with the IFA will most likely need to conduct an individualized assessment of its own needs, goals, and risk tolerance to evaluate its own best practices in light of this new law.

In addition to looking at current training programs, are there some steps that HR departments should take in terms of employee handbooks, workplace investigations, etc. to demonstrate compliance with this new law? 

[Larson] Again, the steps needed to comply with the IFA may be different for every organization. For employee handbooks, an objective description of concepts such as unconscious bias might be permissible, but an employer’s ‘Policy to Prevent Unconscious Bias’ might push the line, and requiring employees to sign off to agree to abide by this policy may cross into the realm of impermissible conduct under the IFA. 

Similarly, in a workplace investigation for allegations of race discrimination, an employer may need to balance its need to train in order to appropriately limit any potential liability under Title VII of the Civil Rights Act or similar state law against the risk that such trainings, depending on their contents, may violate the IFA. Again, this assessment comes down to an individual organization’s structure, business needs, and circumstances, and the answer to what constitutes ‘compliance’ with the IFA may be different for every organization.

If organizations don’t want to stop offering certain instruction but they’re willing to let employees “opt-out”, is that acceptable? For example, if an employee was required to attend a certain instructional program to get a certification or be granted permission to work at a client site, could “opting out” have an impact on the employee’s career? Like situations we face now with COVID vaccinations/boosters. 

[Larson] The answer is that it depends. Allowing employees to ‘opt-out’ of instructions that promote concepts specified in the IFA may be a potential way to comply with the IFA. But would this create a risk of singling out employees who can choose to opt out, and could that form the basis for potential claims of discrimination or unequal treatment under the FCRA? 

Similarly, if an organization requires employees to undergo a training with IFA-banned content to earn a certificate or license, this would appear to violate the intent of the IFA. But if an employee can opt out of that training and still earn the certificate or license, then it seems less likely the employer would have violated the IFA. However, if an employee is required to attend classes, seminars, etc. presented by third parties to maintain employer- or state-required certifications, licenses, and so forth, but refuses to do so because of the content, then the employee may risk loss of employment – not for objecting to IFA-banned content, but for failing to maintain required certifications or licenses.

Another question that the ‘opt out’ option raises relates to certain categories of employees, such as those working under federal contracts, who may be required by federal law to undergo certain types of diversity or similar trainings. How can the apparent conflict between federal law requiring certain trainings, and state law that appears to prohibit those trainings, be reconciled? This is yet another difficult question that the IFA falls short of answering, and the answer will likely involve an individual risk-balancing analysis for most employers.

Again, this legal landscape is new and muddy, and the best advice I could give to an organization trying to comply with the IFA is to seek the advice of counsel who can help evaluate the nuances of the particular organization, its employees, and its strategic business needs and goals.

Speaking of evaluating risk, I’m sure this won’t be a surprise, but some organizations take the path of “If we get caught, we’ll pay the fine.” What happens if an organization is found guilty under the Individual Freedom Act?

[Larson] Since the IFA is part of the FCRA, more than a fine is at stake. There are two different enforcement mechanisms at play. 

First, there is a private right of action for employees. Employees who think their employer violated the IFA can file a complaint with the Florida Commission on Human Relations within 365 days of the alleged violation and then, in most cases, pursue administrative actions or civil lawsuits seeking injunctive relief, back pay, compensatory damages, lost benefits, and, in some cases, punitive damages (not to exceed $100,000).The second enforcement mechanism involves the Florida Attorney General, who can bring a civil lawsuit against an employer for damages, injunctive relief, and civil penalties of up to $10,000 per violation when the Attorney General has cause to believe the employer engaged in a pattern or practice of discrimination or otherwise engaged in discrimination that violates the IFA and raises issues of great public interest.

In other words, the potential consequences for failing to comply with the IFA can be high. This should be a factor in organizational risk assessments for evaluating IFA compliance efforts, as should factors like the size and financial resources of the individual organization. 

Because recruiting is tough right now, should employers be prepared to answer questions about their position on the Individual Freedom Act during interviews? 

[Larson] For most things in life, being prepared is better than the alternative. Certainly, organizations should have a plan for how to address these type of questions if they come up. However, what exactly an organization might say in response to such a question may require yet another individualized assessment of the organization’s strategy for complying with the IFA. For example, is a ‘canned’ answer that an employer is committed to complying with all applicable laws sufficient, or does an organization need to provide greater details as part of its strategic recruiting efforts? 

To the extent a more particularized answer is given, how will the organization make sure the employee giving the answer has the requisite understanding of the IFA and the organization’s strategy for compliance? There are many different considerations tied to this question, and again, my advice to every organization concerned about this issue is to seek customized advice on what solution may work best in light of their individual needs and circumstances. 

LAST QUESTION. If employers want to learn more about this new legislation, where can they find information? 

[Larson] The text of the IFA can be found on the Florida Senate website. Employers should stay apprised of current events and any challenges or changes to this new law. The legal world is ever-changing, and one great step that organizations can take to stay apprised of the most up-to-date legal news is subscribing to a legal newsletter.

A huge thanks to Mia for sharing her knowledge. I learned about this new legislation from the Buchanan Ingersoll & Rooney newsletter, so I would recommend signing up for their advisories. 

As Mia mentioned the legal world is constantly changing. An increasing number of states are enacting legislation that impacts employment law. With employees being able to work from anywhere, this means organizations must understand the laws of the places where their employees are working. 

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