Please Note: The book is written for HR professionals, however, HR professionals are ALSO employees; so ALL of the sample memos and information in the book can easily be used by any employee, in any profession, at any level!Feel free to contact me if you have any questions!The HR Toolkit: An Indispensable Resource for Being A Credible Activist was named an HR “Books in Brief” Best-Seller! Each month HR Magazine reviews HR and management books. Read the reviews for the following books on the SHRMStore site or in your issue of HR Magazine.
This book will help you identify and address workplace dysfunction, recommend improvements for the workplace, and remain within ethical and legal parameters valued by HR/OD professionals. It will give every HR professional—no matter their position or educational level—the tools to articulate his or her concerns to the right people in management in a way that increases the likelihood of a positive outcome.
This book will also help you discern the best ways to spend your company’s training allowance or your own professional training, if you are lucky enough to have that benefit. I encourage emotional intelligence (EI) assessment and skill development for every HR/OD professional, corporate leader, consultant, coach, and trainer. It will only make you even better at what you do than you already are.
If you are an organizational leader reading this book, welcome aboard! Please know all of the work herein is to support you, the company’s mission and goals, and to do so in a manner that is legally compliant and ethical. HR also strive to do so in a way that makes work efficient, profitable, pleasurable, and physically, psychologically, and emotionally healthy. I trust and hope you fully support us in meeting these goals.
This book will also cover some common pitfalls any of us can encounter, and I encourage you to keep the book nearby, as you never know when one of these situations will pop up. As we who work in HR/OD know, this field is never dull. I also hope you will check out the LinkedIn Group I created for credible activists and join us in our quest for legally and ethically compliant corporate governance. As of this writing, the hype keeps growing! I hope you will read on and choose to join us in our quest for legally and ethically compliant corporate governance.
There are six parts to this book. Sample memos, letters, templates and checklists can be found at the end of each chapter in the HR Tools section.
Part One of this book helps HR professionals and managers understand foundational traits needed to practice HR/OD and handle serious problems in the workplace. Sample memos, templates, and checklists are included here. Part One also helps HR/OD professionals assess their own EI skills and technical skills, while also assisting with assessments of HR/OD positions and prospective companies—keeping in mind what aspects of corporateculture must be in place to support ethical and excellent HR practices.
Part Three helps HR professionals and managers monitor themselves and their own professional behavior to ensure that they are not contributing to the problems and dysfunctions found in many workplaces. HR professionals (like business leaders and lawyers) are held to a higher standard; self-awareness regarding workplace behavior is enormously important and affects credibility. The more individual improvement there is among higher-level employees, the more group and workplace improvement there will be. Very often people think everyone else is problematic, unprofessional, difficult, or impossible, but that they themselves are none of those things.
This section will help HR professionals review their own workplace behaviors and reactions to ensure they are not unwittingly contributing to workplace dysfunction and to help them adjust their behavior if needed. This section will also help readers develop into the kinds of professionals who are more likely to be successful credible activists in their HR and/or management roles. In addition, this section will help the credible activist HR professional address behavioral problems in other employees at any level. This section includes sample memos, templates, and checklists.
Part Four helps the credible activist add value to his or her company by using OD knowledge that ties directly to sound internal corporate governance and profitability. The credible activist has more credibility when he or she is able to recommend efficiency-building processes that both prevent unnecessary costs and improve internal systems and processes. This section includes sample memos, templates, and checklists.
Part Five helps HR professionals and managers recommend workplace improvements to make workplaces more pleasant in general and improve talent retention, particularly during a recession, when employees are often asked to give more time and effort for less compensation or scaled-back benefits. This section includes sample memos, templates, and checklists.
Part Six includes resources to help HR professionals and managers find information, get support, obtain answers to legal questions, connect with others in similar situations, improve their marketability, improve job search strategies, and make good use of being unemployed, should they find themselves without a job at some point. Every HR professional has had an unpleasant if not nightmarish workplace experience he or she still recalls and occasionally ponders. Given the increasing number of lawsuits, regulatory violations, workplace violence incidents, and fraud scandals, there is a great deal of work to do, so let’s get out there and do it well!
Chapter 1
HOUSTON FIRM TO PAY $21 MILLION IN IMMIGRATION CASE
OSHA FINES BP $21 MILLION FOR FATAL TEXAS CITY, TX EXPLOSION
Sidley Austin Law Firm to Pay $27.5 Million to Resolve Landmark Age Discrimination Case
When you read these recent headlines from across the United States, ask yourself: Can my company afford risking convictions in civil court, criminal court, and/or the court of public opinion? Which employees and internal processes might be putting my company at risk? A 2007 article in the CPA Journal cites these statistics from the Association of Certified Fraud Examiners’ 2006 “Report to the Nation on Occupational Fraud and Abuse”:
More than $600 billion in annual losses is attributed to fraud.
Tips from employees, customers, vendors, and anonymous sources account for:° 34 percent of the detection of all fraudulent activity
° 34 percent of the detection of fraudulent activity for not-for-profit companies
° 39.7 percent of the detection of fraudulent activity for government agencies
° 48 percent of the detection of owner/executive fraud schemes
Anonymous reporting mechanisms are the antifraud measure with the greatest impacton reducing losses:
° Companies with anonymous reporting mechanisms reported median losses of
$100,000, while those without these mechanisms reported median losses of
$200,000.1
° BNET Business Network reports that shareholder litigation accounts for 47 percent of all directors’ and officers’ liability cases filed against executives of for-profit companies, 16 percent against executives of privately held companies, and 1 percent against executives of not-for-profit companies in the United States. (2)
Add to these trends a responsive trend among directors’ and officers’ liability insurance providers to put forth exclusions in company policies for sexual harassment claims, fraud litigation, dishonesty, and other sources of cost that are considered entirely preventable. The clear message even from liability coverage firms to all types of workplaces is “Really? You were stupid enough to allow that to happen? Don’t look at us to help you with this one!”
You don’t want your company to be the next Enron. There is no room or reason for costly, preventable errors. Compliance violations, safety violations, harassment and discrimination lawsuits, fraudulent activity, false claims cases, accounting scandals, and financial mismanagement are all extremely costly, but most importantly, they are also all preventable. Well-informed HR professionals who position themselves as credible activists and find the courage to professionally and graciously address serious workplace problems are ahead of the competition in every way.
BASIC HR CONCEPTSA surprising number of HR professionals and managers don’t have the necessary skills to write an effective memo to the appropriate person in the workplace in order to have a serious issue addressed or resolved well. Many also don’t have sufficient interpersonal skills to handle conflict, recognize significant diversity issues, or address problematic gaps between policy and practice. Even higher-level managers often lack these skills because they are deficient in technical HR compliance knowledge. However, most HR professionals know when they find themselves in the midst of a seemingly impossible situation and/or are put in the position of violating professional ethics codes.
Most HR professionals put in a position like the one described wish they could have done something about these situations to either help themselves or help someone who was treated unfairly, unethically, or unlawfully. However, most HR professionals and managers do not have the skills, knowledge, or abilities to know how to effectively address situations in which they must educate and disagree with those above them. Countless HR professionals are regularly ignored, excluded from decision-making processes, dismissed as fluff peddlers, and not listened to when their expertise could prevent costly lawsuits and scandals.
As mentioned in the Introduction, SHRM encourages HR/OD professionals to be credible activists in their workplaces and agents of ethical strategic change while remaining allied with corporate business interests. A new reality includes HR and OD professionals as credible activists. Additionally, many HR professionals are unaware that when they advocate for certain Equal Employment Opportunity (EEO) and Americans with Disabilities Act (ADA) rights of others in the workplace, they become protected from retaliation as well. This is a key ingredient in many of the relevant memos, which serves as a protective factor for HR professionals using these memos to improve their workplaces and thus their work and personal lives.
❱❱ RETALIATION AS DEFINED BY THE EEOC Per the Equal Employment Opportunity Commission (EEOC),
An employer may not fire, demote, harass or otherwise ‘retaliate’ against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.
In addition to the protections against retaliation that are included in all of the laws enforced by EEOC, the ADA also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else’s exercise of rights granted by the ADA, now the ADAAA (Americans with Disability Act Amendments Act. Three main terms are used to describe retaliation. Retaliation occurs when an employer, employment agency, or labor company takes an adverse action against a covered individual because he or she engaged in a protected activity . These three terms are described in the following as per the EEOC.
Adverse action
Examples of adverse actions include employment actions such as termination, refusal to hire, and denial of promotion; other actions affecting employment such as threats; unjustified negative evaluations, or references; or increased surveillance. Additionally, any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights would be classified as an adverse action. Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, “snubbing” a colleague, or negative comments that are justified by an employee’s poor work performance or history.
Even if the prior protected activity alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful. For example, it is unlawful for a worker’s current employer to retaliate against him or her for pursuing an EEO charge against a former employer.
Of course, employees are not excused from continuing to perform their jobs or follow their company’s legitimate workplace rules just because they have filed a complaint with the EEOC or opposed discrimination.
Covered individuals:
Practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals. For example, it is illegal to terminate an employee because his spouse participated in employment discrimination litigation.
Individuals who have brought attention to violations of law other than employment discrimination are not covered individuals for purposes of antidiscrimination retaliation laws. For example, “whistleblowers” who raise ethical, financial, or other concerns unrelated to employment discrimination are not protected by the EEOC-enforced laws. (Though they are allegedly protected by almost constantly-changing and unreliable Whistleblower Protection Laws – more on that to come).
Protected activities.
To be unlawful discrimination, an employee makes a complaint that he or she believes the employer is engaging in prohibited discrimination. The complainant is protected from retaliation as long as it is based on a reasonable, good-faith belief that the practice in question violates antidiscrimination law and the manner of the opposition is reasonable.
Protected activities include the opposition to a practice believed to be discriminatory, harassing, or retaliatory. Opposition is informing an employer that you believe that Covered individuals are people who have opposed unlawful. An adverse action is an action taken to try to keep someone from Opposing a discriminatory practice, or from participating in an employment discrimination proceeding.
Examples of protected opposition include the following:
Threatening to file a charge of discrimination●
Picketing in opposition to discrimination●
Refusing to obey an order reasonably believed to be discriminatoryExamples of activities that are not protected opposition include the following:
Actions that interfere with job performance so as to render the employee ineffective●
Unlawful activities such as acts or threats of violenceA protected activity can also include requesting a reasonable accommodation based on religion or disability. For more information about Protected Activities, see EEOC’s Compliance Manual. In fiscal year (FY) 2008, the EEOC received 32,690 charges of retaliation discrimination based on all statutes enforced by the EEOC. The EEOC resolved 25,999 retaliation charges in 2008, and recovered more than $111 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).
What it comes down to is this: If you are an HR professional and you realize your company has made inadvertent errors, is handling certain things improperly, or is somehow failing to prevent harassment, discrimination, and retaliation, and/or is looking the other way while certain employees engage in unlawful or unallowable behavior, you have a number of choices:
You can leave and say nothing.●
You can leave and truthfully let the company know why you are leaving verbally.●
You can leave and truthfully let the company know why you are leaving, in writing.●
You can leave and do any of the above while also reporting any wrongdoing that concerned you in writing to the relevant authorities.●
You can remain and try to graciously, directly, and professionally address the wrongdoing in the spirit of being a chief learning officer and a chief compliance officer as well as the HR professional you are.●
You can approach what you see needs to be remediated in a careful, diplomatic, and direct manner. This approach will only add to your professionalism and credibility as an HR professional who is concerned with the company operating within legal compliance and who is concerned with being part of a lawful, respectable operation.Here is why the disclaimer at the beginning of this book is necessary: most people do not like to be told they’re mistaken. This, of course, circles back to emotional intelligence, communication, and conflict resolution skills, but we’ll get to that later. There is a Seinfeld episode in which Jerry says that the only difference between lawyers and everyone else is that they’ve read the entire inside top of the Monopoly box and know all the rules, while the rest of us haven’t. The disclaimer is that NOT ALL EMLOYERS FOLLOW THE LAW and MANY DO RETALIATE ANYWAY and many DO get away with it. That is why there are carefully-worded sample memos in this book and why you use them at your own risk.
You can predict much better than anyone else whether or not your workplace will retaliation unlawfully despite laws prohibiting this. Many employers do, so if you are going to speak up (which I hope every employee will), you must do it carefully, strategically, and at your own risk.
Oprah frequently says, “Knowledge is power”; she is correct. The knowledge is there for us all. We can choose to learn whatever we need to; we can choose to know and practice our compliance responsibilities in order to abide by them. So what’s the problem?
“Role confusion” and “ego” get in the way. If you’re reporting to or working alongside executives who don’t have this technical knowledge and who assume that HR is meaningless fluff that anyone can do, they’ll often assume they know as much as you do—or more than you do— even if they don’t. If you’re reporting to or working alongside executives who don’t care to know what their compliance responsibilities are, your memos telling them what the inside of the Monopoly box top says might not be welcome. And it may not even be because they’re bad people, because they don’t respect the laws, or because they have an unconscious desire to be sued for millions of dollars. They just don’t want to be wrong. They don’t want to be “not right.”
You report to them, you may be younger than they are, you may have less workplace experience, and you probably earn less money than they do. It sounds ridiculous, and it really, but instead of the grateful response of, “Thank you for doing your job properly, is ridiculous for letting us know this, and for helping to save us costly regulatory fines and lawsuits!” what may happen instead is that you may be met with retaliatory anger that you read the inside of the top of the Monopoly box and had the nerve to point it out to them. Some people will react this way. This book will help you deal with such people, should you be unfortunate enough to encounter and report to them. In addition, it bears pointing out that there are those executives to whom you may compose the most perfectly worded and informative memo ever written who will still react as though you had just committed murder.
However, let’s be optimistic for now. For a sample form you may use to truly invite and welcome any kind of employee feedback, including complaints about unlawful harassment and discrimination, please see the HR Tool entitled “Sample Feedback Report to HR/OD,” at the end of the chapter, on pages 10–11. Feel free to customize this form for your own company.
CORPORATE GOVERNANCEWhat is organizational development and how does it relate to corporate governance? How is it different from HR, and why should HR professionals and leaders care? Here are three definitions from pioneers in the OD field, which were given in a Multi-Rater Feedback graduate class that was taught by Allan Church and Janine Waclawski.
Richard Beckhard defines organizational development as a planned, top-down, companywide effort to increase the company’s effectiveness and health. OD is achieved through interventions in the company’s “processes,” using behavioral science knowledge..Being a credible activist is the most challenging of the six critical skills any HR/OD professional must have, according to SHRM. Many helpful articles and white papers are available on www.SHRM.org regarding the importance of being a credible activist. A credible activist is someone who backs up his or her positions and recommendations with credible research, who takes a strong stand on certain points, who is respected, and who accomplishes organizational improvement in doing these things. Credible activism has also been called “HR with guts” or “HR with sharp elbows.”
The HR/OD field has evolved significantly from the “personnel departments” from decades ago and from out-of-touch HR professionals who give HR/OD a bad name. One man in Annabel Gurwitch’s film FIRED! describes how, as a former HR professional, he would betray the confidences of employees to their managers while claiming that was his job and referring to HR as “the dark arts.”5 This is unethical and not at all consistent with the new HR/OD professional of today. While it has historically been true that HR has been mistrusted by employees and inaccurately regarded as valueless fluff by executive management, HR has emerged as a prominent and valuable aspect of OD that directly connects profitability to governance.
❱❱ CREDIBLE ACTIVISM
SHRM encourages HR/OD professionals to be credible activists in their workplaces and agents of ethical strategic change while remaining allied with corporate business interests. This new reality of HR and OD professionals as credible activists is extremely different than the former perception of HR practicing the “dark arts.”
Most HR/OD professionals have encountered company and corporate leaders who don’t understand what HR/OD is, what HR/OD can be, or how crucial the practice of ethical, legally compliant HR/OD is to competitive corporate governance and efficient and profitable operations. They mistakenly think that HR is all about health benefits and facilitating the firing of employees when necessary. Yet this could not be further from the truth. We in HR know that much more is involved with our roles. In addition, we know that unless there is a separate OD department in your company, adding OD to the HR title is now necessary, not optional icing on the cake. We need all the knowledge and awareness we can get to support our leaders and companies in order to be as competitive and robust as possible.
Imagine an HR/OD credible activist working for Enron who notices that something is not quite right. Let’s say this ardent, earnest HR/OD professional says, “Excuse me, boss, but Joe from accounting just came to me and asked me to relay to you that there are some serious issues that need to be discussed.” What does the boss say or do? Does the boss say, “Thank you, credible activist! You’ve helped us avoid disaster. We will investigate, change how we do things if necessary, and you and Joe in accounting are getting promotions and raises for having pointed this out!” Or does the boss suddenly decide that the credible activist’s and Joe’s job performance are not quite what they needs to be and that they have also been interpersonally “difficult” and have used “poor judgment.” Perhaps after giving them poor performance evaluations, he puts them on probation, until it is time to terminate them.
We know this happens in the real world. We know that protections from retaliation and whistleblower laws don’t always work to protect well-meaning employees and HR professionals who speak up about anything that is not being done ethically or lawfully. So, what is a credible activist to do? This book addresses all of the issues involved. But for now, your job as a credible activist is to keep your résumé up-to-date, continue cultivating current and new professional contacts, assess your life now and what you can risk, and assess how receptive your current workplace is to your being a credible activist. You will learn to predict your leadership’s responses to your credible activist role. You will need to keep all of your ducks in a row, always do credible research, and further develop and practice every communication, conflict resolution, and EI (emotional intelligence) skill you have.
More Coming Soon!
Warren Bennis defines OD as “a complex strategy intended to change the beliefs, attitudes, values, and structure of companies so that they can better adapt to new technologies, markets, and challenges.”
Warner Burke emphasizes that OD is not just “anything done to better an organization”; it is a particular kind of change process designed to bring about a particular kind of end result.
OD involves company reflection, system improvement, planning, and self-analysis. The OD field has learned a great deal about what makes any kind of company succeed or fail and why. This book will spare you the boring case studies and endless research and present what has proven to work and what will provide you with a competitive edge via costsaving governance practices that can be influenced, recommended, and implemented by the credible activist HR/OD professional who wishes to improve his or her workplace and do his or her job ethically and with excellence.
What the HR/OD professional must always remember is that the HR/OD department, no matter how large or small, is the government of an organization, and the employee handbook is the constitution. Whether the HR/OD professional reading this book has the authority of the executive, legislative, or judicial power in the company, or some combination of those, depends on the company, its culture, and its leadership. The HR/OD professional must clearly understand his or her role in the company in order to be effective and credible, and, frankly, to remain personally calm.
The new world is flat—and apparently hot and crowded, too. In the not-so-distant past, discussion of wages could get an employee fired; nepotism ran rampant; people took care of “their own”; racial and gender ceilings were impenetrable; there was no recourse for harassment or discrimination and retaliation; and all of this was completely allowable under the law.
The world has changed, and employment laws are ever changing. A growing global middle class, increased educational opportunities, global markets, and technological advances have eliminated almost all commerce and communication barriers, resulting in increased competition not only for the best jobs but also for the best employees. The existence of various “corporate governance indices” illustrates that the direct relationship between profitability and OD principles is what I call “competitive corporate governance.” HR/OD professionals can and must influence ethical and legally compliant competitive corporate governance. HR/OD professionals have the benefit of being able to stand on the shoulders of countless scholars, researchers, and successful business leaders who came before them. Even nonprofits and government entities must use every dollar as efficiently as possible.
Several corporate governance indices have been developed to rate publicly traded companies in terms of the quality of their corporate governance so investors have information they need to make determinations. Would you invest in a company that had no written EEO policies? Would you invest in a company that had policies but didn’t follow them consistently? Would you invest in a company that hired only family members and close friends who weren’t properly trained for crucial positions such as chief executive officer (CEO), chief financial officer (CFO), internal controls officer, ethics officer, chief of staff, or chief compliance officer? If investors would not, then taxpayers and donors will not either.
Factors used in most corporate governance indices include ratings of risk in various areas including accounting, regulatory, legal, reputation, environmental and social, compliance, portfolio, credit, and market. Investors seeking to hold shares in a company for the long term will typically be concerned about the quality of their company’s corporate governance, as research has shown that a high quality of corporate governance typically leads to enhanced shareholder returns. Prudent investors look to these measures to determine whether to invest in various companies. Investment research has come to include many OD principles in the evaluation of a company’s competitiveness and predicted profitability. Even if a company is not publicly traded, leadership and HR/OD will want to ensure that what I call “competitive corporate governance” (TM pending) is in place to both boost profits and prevent unnecessary risk. The chapters that follow will explore how an HR/OD professional or any corporate leader with influence, authority, and determination can do this from an OD perspective, which unsurprisingly mirrors those areas that are now scrutinized by the most prudent institutional and individual investors.
Many of us have seen or heard interviews with Warren Buffett and have learned how he personally visits and researches companies before investing in them, as well as maintains both a balance of personal relationship and trusting autonomy with business leaders in whom he chooses to invest. He is only able to trust them because he has researched his own sense of competitive corporate governance, and he knows what he requires in a business in order for it to be worth his financial backing.
Although HR/OD professionals still often struggle for the respect their colleagues with MBAs and law degrees get in the C-suite, the most crucial linchpins of competitive corporate governance are rooted in OD knowledge and will determine whether a company survives and thrives, or fails. Even HR/OD professionals who don’t have the influence, authority, or experience they wish they did will be able to find many ways to apply what we have learned in the OD field about why these linchpins have proven to contribute to corporate success and increased profitability. See the HR Tool entitled “Competitive Corporate Governance Implementation,” on pages 11–12.
WHAT IS A “CREDIBLE ACTIVIST” AND WHY IS IT IMPORTANT?
March 5th, 2012 at 2:56 pm
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