Is it intent that matters or the effect?

by Michael Haberman on May 24, 2016 · 0 comments


Will a rideshare company that hires only women and only picks up women pass muster with antidiscrimination laws?

Will a rideshare company that hires only women and only picks up women pass muster with antidiscrimination laws?

I read a very interesting article written by attorney Malcolm Seymour of Garvey Schubert Barer. It was about the new ride sharing Uber style service called SafeHer, which advertises that they are a company “Driven by women Exclusively for women.” The promote safety as their prime concern. The question is, will this well intended idea be able to survive on its good intentions or will if fall do antidiscrimination laws.

Title VII

Seymour, in his analysis, points out that on the surface the idea of a company that only hires women would seem to violate Title VII of the Civil Rights Act of 1964 despite of the good intentions of promoting equality for women as well as safety for women. He does point out that there is some allowance in the law for some same sex provisions. A bona fide occupational qualification (BFOQ) is what allows companies to hire only women to staff women’s locker rooms and dressing rooms. So perhaps SafeHer could argue that they cannot provide a safe environment by having to hire men.

Of course not having men as drivers is not an assurance of safety. Where I live there are frequent stories of women holding up stores, carjacking, getting into fights and shooting people. A woman inclined to be a criminal might see a car-ride service that only has female passengers as a land of golden opportunity.

State laws

Seymour also points out that many states and municipalities also have individual anti-discrimination ordinances, especially when it comes to public accommodation, like a ride-sharing service. Unlike Title VII, which is only applicable to companies with 15 or more employees, state and municipality laws often cover small companies and in some cases companies with just one employee. He does point out that these laws also have some BFOQ type of considerations.

Other considerations

In addition to the antidiscrimination issues that SafeHer will have to have to deal with the independent contractor issues that Uber and Lyft are having to deal with as well.

They will get sued. Imagine a situation where a couple is out and the woman arranges for the car, using her account with SafeHer without thinking. The car pulls up and the driver tells the man he is not allowed in. Or another case where a man applies to be a driver and he is denied employment due to his sex. That is certainly ripe for a legal challenge.

SafeHer has temporarily suspended their nationwide roll out. Seymour suggests they may want to start up in jurisdictions where the might find a “friendlier” audience and court system in order to get their feet on the ground and talk about how well it works, or discover that it does not. I am all for opening up opportunities for women and also for providing safe environments. However I think there are ways to accomplish those goals without being discriminatory in your hiring practices or in your service model.

To read Mr. Seymour’s excellent article you can click here.

 

Photo: Courtesy of Toa55

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Don't do something that will attract the IRS' attention.

Don’t do something that will attract the IRS’ attention.

I have written a number of times about the dangers of improperly classifying independent contractors. You can find two such posts here and here. The dangers of doing so have increased in early May.

More enforcers

The IRS announced on May 5th that they have “found” money in their budget to hire between 600 and 700 new enforcement agents. They said “Each enforcement position typically returns almost $10 to the U.S. Treasury for every dollar spent—and in many instances, much more.”

There is no guarantee that all these agents will focus on misclassification, but with the attention that has been paid to this area, along with the Memorandum of Understanding signed with the U.S. Department of Labor and various states it is a sure bet that some of these agents will be assigned to this area.

By the way, did you know that there is a form, the SS-8, that allows workers to initiate a review of their independent contractor status if they feel they have been misclassified.

Do the right thing

The best way to avoid meeting one of these new enforcement agents is to make sure you have not inappropriately mislabeled a worker as an independent contractor. You can find the rules in this post Using Independent Contractors just got riskier!

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Storytelling can be a way to preserve your job in the future.

Storytelling can be a way to preserve your job in the future.

Storytelling has a long and noble history. For centuries we told stories to convey information about culture, religion, heroes, mores, and just how people lived. Many of these stories became legends. Many of these stories become lessons that guided behavior. Anyone remember Aesop? What happened? Why don’t we tell stories anymore?

We got civilized

What happened was we created the written word and the oral tradition diminished. We went to writing and reading stories instead of speaking and listening. Then we established policies and procedures and even our writing got uninteresting or more correctly BORING. We used to excite people by gathering around the fire or sitting in a circle and telling a story to educate and inform.

When was the last time you gave an employee handbook to someone and asked them to read it and sign the document that attested to their understanding it? Perhaps more understanding might be conveyed if you created stories that exemplified the important principles you are trying to teach. My friend Matt Monge has a post called 7 Reasons Leaders Should be Great Storytellers. In it he said stories are important because “They make us think. They make us feel. They make us care.” He also said “stories can be infinitely more effective in actually communicating ideas than a policy manual. (And no, I’m not saying you shouldn’t have policy manuals. But I am saying you might want to rethink what you’re expecting them to accomplish.)” And I agree with him.

“stories can be infinitely more effective in actually communicating ideas than a policy manual” – Matt Monge

In the classes I teach I tell “war stories” about HR and I always get high ratings because these stories help make the words on the pages of the books much more real. It gives them context. That is important when you are leading employees, especially new employees.

Another reason to tell stories

There is another reason to tell stories beyond its effectiveness in conveying information. That is job security! Stories use emotion to convey messages. Robots, by which many of us might be replaced in the future, cannot be emotional. Emotion is a HUGE part of communication. It cements what we hear or read. Dr. Frank Luntz, author of Words that Work, says “80 percent of our life is emotion, and only 20 percent is intellect”. Emotion is human.

Emotion is a HUGE part of communication

Preserving the “human” in your job is important if you want to stay employed. As Monge said “Great leaders understand that stories are part of a humanized culture.

So if you want to have that job in Human Resources in 5 or 10 years learn how to tell stories that get across the company culture and the company rules. Your employees will be better for it as will you.

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The new FLSA regulations are in place.

by Michael Haberman on May 19, 2016 · 0 comments


The new regulations are in place.

The new regulations are in place.

Well the change has been made. Fortunately it is not as bad as was originally expected. The new level to qualify to be an exempt employee is $913 per week or $47,476 per year which is better than $50,440. Unexpectedly they announced it will not be adjusted annually, as originally anticipated, but every three years. It does allow you to count bonuses and commissions, for up to 10%, to go toward meeting the threshold.

Of course it will still require you to determine who is exempt and whether they meet the standards set forth in the regulations on exemptions. If they do not meet those standards or they do not get raised to the new salary level then they will have to be paid overtime for any hours worked over 40 in a week. This means you will have to track their time accurately.
This due to be effective December 1, 2016, which was also unexpected. This gives everyone time to be ready.
There will be more information coming out and I will put together a complete post after I get the details.

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Are you aware of this NEW law?

by Michael Haberman May 18, 2016

Tweet We in HR know that you need to have your radar on all the time watching for new laws you have to pay attention to in order to be compliant. This new law probably ducked under your radar, unless you are an attorney. Passed with little fanfare and effective immediately it is one of […]

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Wage and Hour lessons- Damn this stuff gets complicated!

by Michael Haberman May 17, 2016

Tweet Rather than subjecting you to my writing today I am going to expose you to the writing of four excellent attorneys who also write great blog posts. The common theme to these four posts is wage and hour issues. This is important with the new exempt regulations looming on the near horizon. Minimum wage […]

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One secret to understanding people better

by Michael Haberman May 16, 2016

Tweet I was able to read and finish a book on a flight to a conference in Las Vegas last week. The book is Dave Kerpen’s The Art of People. It is a very readable book chocked full of pretty sound advice. The subtitle of the book is “11 Simple People Skills That Will Get […]

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From the Archive: Future Friday: Does telecommuting cause a digital divide?

by Michael Haberman May 13, 2016

Tweet I am traveling today, so I bring this commuting post from the archive. I have written a number of times that the part of the future of work is both telecommuting and a free-agent workforce. More and more companies are using or allowing a greater freedom in telecommuting. More companies are using independent contractors […]

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From the Archive: Millennials may not be the radicals you think

by Michael Haberman May 12, 2016

Tweet I am in Las Vegas today at the Thrive 2016 conference. One of my duties there is to chair a panel discussion on Millennials in the workplace. Thus I thought I would republish this post from the archives.  A recent LinkedIn survey showed that Millennials may not be the radical employees that everyone keeps […]

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From the Archive: Travel Time and Your Non-exempt Employee

by Michael Haberman May 11, 2016

Tweet I am away this week. Since I am traveling I was reminded that air travel may be more difficult to deal with under the new FLSA regulations. You may have employees who traveled as exempt employees who will now be reclassified as non-exempt employees. The rules for paying them become more complicated, you had […]

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