Episode 43: What to Do When Your HR Recommendations Are Ignored, Dismissed

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers, General counsel and Executive Vice President. And to kick off the first podcast of the 2020 year. Back on the podcast is Jennifer Shaw of the Shaw Law Group.

Happy New Year, Erica.

Happy New Year to you, too. I can't believe it's 2020. It's Friday.

I can't believe it either. But here we are.

Here we are. So for a lot of individuals in the human resources profession, or even those that manage and supervise, the beginning of the year is always a fresh start. There's lots of new laws that have to be dealt with. I think it's fair to say that a lot of individuals who oversee employees in the workplace have their checklist of different pamphlets that they might need to provide. New notices, new postings, new training requirements.

Yes.

So to kick off the new year and this new podcast, let's hear a little bit from our friend Michael Scott at the office.

The full story is that Randall resigned because of sexual harassment. So corporate asked me to do a five minute review of the company's sexual harassment policy.

No, no, Toby, no.

It's really not a big deal.

It is a big deal.

It's a big deal.

What are we supposed to do? Scrutinize every little thing we say and do all day? I mean, come on.

And then corporate is gonna send in a lawyer.

What?

Just to refresh you on our policy.

What?

No.

Okay. What is a lawyer gonna come in and tell us? To not send out hilarious emails or not tell jokes?

Maybe not some of them. Maybe not inappropriate ones.

There is no such thing as an appropriate joke. That's why it's a joke. Everyone. Hello, everyone. Hi. Sorry to interrupt. I know you're all busy and the last thing you want is for a major interruption, but Toby has an announcement that he insists on making right now in the middle of the day. So take it away.

Yeah.

Okay.

Corporate would like us to do a five minute review of the company's sexual harassment policy. So I'll go over that later.

I wish you luck, Toby, I really do, but you are going to have a mutiny on your hands and I just can't wait to see how you handle it.

I love this show.

Okay. I could watch this clip over and over again, and I'm sure so many listening could say, I get it. I've been in Toby's shoes.

Yes, well, it's a tough place to be, right? I mean, here's the thing. Human Resources is supposed to make all this happen. Everything you talked about a Moment ago, Erica, roll out the new handbook, get out the new brochures, do the training. And they need support from the top. And this is the problem. People don't like hr. They think they're going to get in trouble from hr. There are certain people who don't have a good feeling about human resources right now. Obviously, the employees who are good employees who do what they're supposed to do, they don't have an issue with hr. But when you have a leader like Michael Scott being so incredibly disrespectful and downright dismissive of HR's role in the organization, you got a problem. And I love the Office because these writers, they get it right every single time. This is not some crazy thing that never happens in the workplace. I have had leaders at trainings I have done on equal employment opportunity basically say that, well, we have a trainer here. She's a lawyer. She's going to teach you about this. We all know it's the pendulum has swung too far. Okay, thank you very much for completely setting up an impossible situation to get this message across. Right. So what I love is that the Office was written way before MeToo. Yeah, right. They had their finger on the pulse. They knew exactly what was going on. And this is the role that human resources has. It's lonely. You're going to get people who are often upset, they think you're going too far. That is what it is. When you have a leader that is not supporting it, they should be disciplined. There should be corrective action that is completely unacceptable.

And you know what you can't see because you're listening to the dialogue is the frame starts with Toby and Michael Scott in their own private office, not in front of all the other employees, which is what was going on in there is classic.

Classic.

You're bringing the lawyers in. Oh, my God.

They're not gonna let us tell a joke. I literally have people in training say, well, what jokes can I tell? And I'm like, well, chicken cross the road joke. I mean, I don't know. You have to be careful. PETA could be upset by the chicken cross the road joke. So you have to think about it.

You have to think like we've been talking about your audience, your culture, what is appropriate, what isn't appropriate. But then here, the boss takes it out to the entire workplace as far as, here we go, good luck, Toby.

Well, and he has to interrupt you and you're gon have Mutiny. And I'd love to see how you handle it. It's the most disrespectful, dismissive way to handle it. And I have HR professionals all the time who pull me aside and say the boss doesn't support what I'm doing. Well, guess what? If you're listening to this podcast and you're in an organization where the management doesn't support your role in hr, go somewhere else. They don't deserve you.

So I think what's really important here is as hr, we are our job. Part of the job requirements is to ensure that the workplace is following all the rules of the road, so to speak.

Or at least set it up so that can happen.

Yes, yes, that's even more important. Correct. And in California, we know every year with the new year there is going to be a new law that we're going to have to comply with. And how is hr, who's tasked with putting everything out there so that the workplace can comply? How do you handle someone like Michael Scott or your supervisor or CEO who is kind of just poo pooing on it, for lack of a better word of saying, well, we don't have to, or that's ridiculous. Especially when it comes to harassment prevention training, which, like you said, this clip from the office was filmed years ago. And here we are now in 2020, where employers with five or more employees are going to be providing mandatory harassment.

Prevention training to their employees, to everyone, not just supervisors.

That's right.

So this idea of we're going to hide the ball from the staff, no more, it's not gonna happen anymore. Well, part of it I think is obviously my idea of you should go somewhere else. They don't deserve you. I mean, obviously people have to work in this sort of an environment where human resources is like compliance. Right. That's what they do. Or qa, where people have feelings about it and they think that they're going too far or they're demanding too much. But one of the things that I think HR folks need to feel very comfortable doing is going to the leadership and at least getting buy in from the top. And that should be questions you ask during interviews. If you're an HR director and you're not interviewing with the person at the top of the organization, that's a message for you.

Well, and I think what's important too, and I think, you know, it's very easy to get nervous talking to the boss. Of course it is. Regardless of who the boss is. Absolutely. And coming to, finding ways to communicate to the boss to say, look, here's what the state of California is requiring us to do this is really important and this is why it's really important. And especially when it comes to harassment prevention training, there's a lot of really great ways to sell the training to your CEO.

Yes.

And what I mean, not sell meaning buy, but getting those up in the suite on board.

Yes.

And to take away the fact that, oh my gosh, that's an hour or two hours away from them being productive.

It's actually an hour or two of them being very productive because they're going to learn about how to act appropriately and they're going to learn how to be better citizens in the workplace, which does translate to better work product and.

It translates to the bottom line. Right? That's right. Because your litigation budget just took a drastic cut if you're doing this correctly.

Right. So we see this a lot on the Labor Law helpline too, where human resources, whomever that person might be, just struggles. In fact, oftentimes they say, can we just make a cop out of your Labor Law Digest book, or can we just download something on HR California and show our boss that what we are saying is true, is legitimate?

Well, I think that's critical. I have no problem with that. One of the things that dawned on me when you were talking a moment ago was human resources needs to have resources, Right? And so their resources are obviously the Cal Chamber, outside counsel, inside council, they need to use this information. So one of the things I know when we do our legal update is those HR people go back to their workplaces and they tell the powers that be, hey, I saw Jen Shaw and this is what she said and this is what we need to do. Right. And I want to empower them to be able to do that. Look, I've done my research and I've checked it out. Here's something from the Labor Law Digest that backs me up or I talked to the hotline today.

Sometimes I think human resources folks feel uncomfortable saying I reached out to someone to get this information, but they shouldn't everyone to their highest and best use. You're just double checking what's going on. I learn a ton from HR folks.

I totally agree. And I think that part of it's human nature where for whatever reason, we believe that we should know it all and don't want to admit to having to ask those tough questions or seeking help, which to me is so unfortunate. I mean, that you're only going to get better by asking the questions and.

You'Re only going to be better by making a few mistakes along the way.

And Timmy, you're more dangerous not knowing what you don't know than being aware of the fact that you may not know everything.

I work with one of the attorneys in my office came to me the other day and said, I feel bad that I ask you so many questions. I said, are you kidding me? If you weren't asking me questions, I'd be hysterical right now because you should be asking questions. That shows me that you're thinking and you have an idea of what's going on. Same thing with hr. You may know the technical law and the legal points, but it could be really helpful to hear. This is how this other company rolled out this training. This is how this other company dealt with this issue that was investigated by outside counsel. This is how this other organization addressed a concern that came in on the hotline, if you can gather that data. That's why I think organizations like the Sacramento Human Resources association, shrm, these groups that get people together where you can actually kibbets, you can actually talk about, okay, what's going on in your organization? How are you rolling out this training? How are you rolling out the policy? What are you telling people when they express disdain for the training or when they do what Michael Scott just did? And so to me, that information is invaluable because then you go to the boss and you say, hey, this isn't just me being a parrot for, you know, some article I read. I've actually looked at these issues. I've read the statute. I've looked at the case. I went to this legal update. I know what I'm talking about. If you decide you don't want to do it, that's okay, but don't demean me in the process.

I also think what we forget to do is the why. Why is it important?

Just like with our children. Right. The answer can't be because I said right.

So with that, all of us can think about what is the why that we have to do the prevention training. Yes. It's mandatory. The state of California tells me to. But there's so much more to it as far as making sure that our employees are well aware of what's appropriate, what's not. When can I say when can you give an employee a hug? Right. I mean, these are some really real questions that the training will provide answers to.

Absolutely. And the other thing the training does is it shows the commitment that the organization has to creating an appropriate, respectful work environment. It doesn't mean everyone agrees.

Right.

But there has to be a level playing field.

So, Jennifer, sometimes when these new Laws go into effect or there's new policies and procedures that HR wants to introduce to the organization. The person on the top is very resistant, maybe because that person has violated those proposed policies.

A little like Michael Scott, right?

Yes. And that's. You read my mind. As we know. And for those of you that have watched the office, Michael Scott is not your stell leader from the top and definitely got into some own harassment, quote unquote, sexual harassment with his own boss. Which of course begs the question of, is that why he was saying, oh, no, we don't need to get the lawyers? And because he was worried about what the lawyers would find about him.

Right.

So what does HR to do in those circumstances?

Well, first of all, let me just say there is no one answer to that question. And I know this is frustrating to human resources professionals, and they ask me this question a lot. And I think they hope that I have a magic wand and that I'll wave it around the C suite and that somehow everyone will come to their senses. The truth is, you can't make someone become more aware of what's going on. I think you have three choices or three options as a human resources professional. Number one, you try to talk calmly and rationally to the person who is giving you the feedback or the pushback and say, listen, this is why it's required. This is what we need to do. This is my recommendation. Right. So you do your very best. You plead your best case. The second thing you do is you realize some things are worth having a further discussion about and some things aren't. So somebody wants to have a mileage policy where they don't pay the IRS rate. We all know that there's a consequence to that. Under labor code section 2802, the CEO doesn't care, so we let it go. When you're talking about harassment prevention training, you're talking about equal employment opportunity. There's personal liability, potentially. So the second thing you do is you bring it home to the leader. Listen, this is something that is not just an organization issue. This could be something that hits you personally. And I'm sure you've read about this, I'm sure you've seen this, but I want you to understand my job in HR is to help you figure that out. You don't have to like it, you don't have to agree with it, but you have to know that this is where we are going. The third thing, or where I recommend we go. The third thing is if you think there's an issue that's Really a problem. You go above the boss, whether that means the CEO, the board of directors, the chairman, whatever you need to do. And human resources professionals are protected for whistleblowing just like everybody else is. And so I think they have to be brave enough in that role. And I am not in any way saying it's easy. It is very, very difficult.

HR has to have some of the most difficult conversations ever.

And I have such respect for human resources professionals who have to do this day in and day out. It's really tough stuff. But I look at employment lawyers as being very similar. You know, I'll have a conversation with a client, and the client will say, well, thanks for sharing, but I'm not doing that. Okay, that's your choice, but I'm gonna write this down. And sometimes I'll joke with a client. Yep. I wrote down what you just said. Got it in my notes. No problem. It'll be in the file in case we ever need it. Yeah, because I just want to be clear, like, look, you do whatever you want to do. You hired me to give you advice. If I'm your HR director, you hired me to give you advice. You can do with it whatever you wish. There will come a time in certain situations when the HR person says, I can't be here anymore because this is such the antithesis of what I think should be happening. Those are people who leave organizations. The good news is, most of the time, you don't have to do that. Most of the time, you have the conversation. The person at least understands where you're coming from and. And you can move ahead.

And I think that that's important. I think you're better off having the conversation than by hiding underneath the sheets of your bed, so to speak, and.

Not doing anything right or just keeping your journal notes of what's going on without actually saying, look, I disagree with this.

Yes, I agree.

This is why HR needs to have, you know, quote, a seat at the table.

100%. 100%. And that's a subject for a whole nother podcast. Yes.

Yes.

With that. Jennifer, thank you again for joining us. Kicking off the new year with always interesting information and valuable tips.

I love being here. Thank you so much.

Thanks for listening to the workplace. Please subscribe, share and comment about Cal Chambers podcast by visiting kelchamber.com.