October 2021
Safety Based Retaliation Claims

Many employers have been looking forward to bringing employees back on-site this year (and some employees have pushed it back). With this goal in mind employers face a number of obstacles in keeping their workforces safe and healthy as well as consequences for failing to do so. One consequence can arrive in the form of an Occupational Safety and Health Act (OSHA) retaliation claim. Unfortunately, the number of workplace safety retaliation claims has significantly increased, with the trend expected to continue as businesses continue/begin the “return” activities.

We continue to remain in a pandemic despite some of the positive trends that we are seeing in vaccinations. At the same time, many of us have heard and seen the news regarding employees who have stated they don’t intend to get the vaccine now or maybe ever.

Employers of essential workers who have been doing their jobs on-site throughout the pandemic will be at an advantage in navigating the new parameters because they’ve been required to adhere to safety protocols all along. On the other hand, employers that have permitted most employees to work remotely during the crisis likely face a bigger challenge. Since few of those employees have actually been in the office, safety measures first enacted in 2020 may have become loose and lenient. (continued...)
Safety Based Retaliation Claims
Leading Employees Through Organizational Change
Tips for Dealing with the EEOC
Disability Communication Guidelines
Collaboration and Teamwork in Your Workplace
Questions to Ask a Mentor
HRA Happenings
HR by the Numbers
Whatever the Question
HR Link
Thought to Think About
Events Calendar
On My Soapbox

Surveys have indicated that many remote workers remain fearful of returning to the office or simply have come to prefer the environment of remote work. The risk for workplace claims come from a combination of increasing workplace density, lax safety measures, and fearful or resentful employees.

Like other federal laws that prohibit employers from retaliating against employees for engaging in protected activity, OSHA and its state law counterparts bar an employer from retaliating against an employee for reporting unsafe or unhealthy working conditions. Protected activities include:

  • Raising health and safety concerns directly with the employer;
  • Filing a formal complaint with the Occupational Safety and Health Administration (OSHA); and/or
  • Participating in an OSHA inspection or investigation.
In addition to termination, demotion, and suspension, other actions such as transferring an employee to a less favorable location, assigning more menial tasks, or preventing them from engaging in workplace activities might be deemed to be unlawful retaliation. The bottom line is any consequence that would dissuade a reasonable person from reporting health and safety violations could be found to be an adverse action in violation of OSHA’s anti-retaliation provisions.

So let’s be practical. Putting in place appropriate health and safety practices to limit the spread of COVID-19 is the first step to avoiding OSHA retaliation claims. Therefore, please consider these activities:

  • Pay attention to frequently changing federal, state, and local health and safety guidance;
  • Distribute written safety policies and protocols that meet the guidelines;
  • Post the rules prominently and create online access to them if possible.
  • Ensure they’re being followed in practice;
  • If large segments of the workforce are returning to the office in 2021 or 2022, consider setting up safety training for all employees (incorporate it into your “reboarding” activities;
  • Have a system in place for employees to raise health and safety concerns without fear of retaliation;
  • Train managers and supervisors about the reporting procedures and your anti-retaliation policies;
  • At the very least, you could include a written policy in your handbook and implement an anonymous submission process or other mechanism for ensuring confidentiality; and
  • Reports should be investigated and addressed, with each step and decision in the process diligently documented.

If you have additional concerns or questions around retaliation, please feel free to reach out to one of our consultants to discuss further – we are happy to assist.
Leading Employees Through Organizational Change
“We cannot solve the significant problems of today with the same level of thinking we used when we created them.”
- A. Einstein
One of the most compelling prerequisites of effective leadership today is the ability to lead employees through organizational change. Leaders tend to be either highly sensitive or highly insensitive to this prerequisite. Those who are highly sensitive know what actions are appropriate and act; alternatively, those who are highly insensitive are baffled, confused, and frustrated (though unwilling to admit it), and act inappropriately. One of the most inappropriate actions they take is to begin the change process, then pass the leadership of that process to someone else or, worse, to a group. This "disengaged leadership" model results in employees who are frustrated by the change, who become less productive on the job, and who do not embrace the change process.
The leader who is highly sensitive to this prerequisite of effective leadership stays connected and engaged with the change process and takes into account three essential factors:
  1. The human element of organizational change.
  2. The compelling need to focus on the reasons for change and the desired outcomes of change.
  3. The imperative to engage employees in the change process.

The strategy then must be leading by connecting, focusing, and engaging those around you. Effective leaders understand that people relate to organizational change differently. People who are faced with organizational change can be grouped into three categories:
  • those who are usually uncomfortable with change;
  • those who like change or accept it willingly with little or no hesitation; and,
  • those who are willing to go along with change if they understand it.
Those who are uncomfortable with change are threatened by change in general. They tend to be disconnected with organizational priorities, may not trust leaders, do not outwardly demonstrate their loyalty to the organization, and may not ever embrace change with a comfortable feeling. Ten to 15% of employees are likely to be in this group.
Effective leaders accept this group as a fact of organizational life and avoid spending too much time trying to convince them to accept change.
People who like change usually support and trust organizational leaders without question, are well connected to organizational priorities, and outwardly demonstrate a high level of loyalty to the organization (although some cannot be counted on to vocalize this commitment in public due to peer pressure). About 25% of employees fall into this category. 

Effective leaders acknowledge this group with enthusiasm, enlist members to leadership roles in promoting the change effort, and stay closely connected with them by reinforcing their efforts, their loyalty, and the importance of their leadership role in the change process.
Those who are willing to accept change want to understand why it’s necessary (reasons) and what it will mean for the organization (desired outcomes). They generally support and want to trust organizational leaders if they are convinced the change makes sense and that the CEO and their immediate supervisors know what they are doing (i.e., they believe they are competent). Members of this group are usually connected to organizational priorities. Sixty to 65% of employees in most organizations are in this group.
Effective leaders focus most of their time and attention on this group, ensuring that members understand the reasons for the change and the desired outcomes of change and actively seek their engagement - even leadership - in the change process.
One of the pitfalls that leaders of change must avoid is spending too much time communicating what the organization will look like once the change process is completed, and little or no time explaining why the change is necessary. Since 75% of employees in most organizations will not readily embrace change without an understanding of why it’s necessary, the basic reasons for the change must be explained up front if the change is to evolve readily and enthusiastically. This is particularly true of the employees who are willing to accept change if the reasons make sense to them and they understand their place in the change process.
Effective leaders articulate the reasons for change and the desired outcomes of change at the initiation of the change process and reinforce them at every phase of the change process; they ensure every change leader does the same.
In general, employees want to be part of the change process, if only to protect their own job security, once they understand that organizational change will take place. Effective leaders will take the following actions to keep employees engaged in the change process:
  1. As early as possible, help employees understand their part in the change process and what the outcomes will mean to them as individual employees. Ensure that other change leaders do the same.
  2. Establish roles in the change process for as many employees as possible and explain those roles in some detail up front.
  3. Stay personally connected with as many of these employees as possible through individual conversations, in person whenever possible, and via telephone otherwise. Avoid relying on email communication, which is viewed as impersonal by most employees.
  4.  For those employees who are not convinced of the need to change, create safe and easily accessible opportunities for them to express themselves, and limit the amount of time leaders devote to these opportunities.
  5. Do everything possible and reasonable to ensure a speedy change process. Long, extended organizational change processes lead to serious morale problems, reduced productivity, and enhanced opportunities for resisters to make their case and gain momentum, thereby negatively impacting the change process.
  6. Continually reinforce the reasons for the change and the desired outcomes. Remain fully committed to the change process, and resolute in leading it.
Material compliments of Jim Jose, SPHR, Jim Jose and Associates 
Tips for Dealing with the EEOC

So, you got a call or a letter from the EEOC. How do you respond and deal with this intimidating agency? There are some mistakes employers make that you can and should avoid: 
Not being proactive. Corporate legal departments should self-assess and monitor EEO policies and procedures on an ongoing basis. Attention to such details will signal your commitment to the rights of employees. Make this commitment part of your corporate structure. Value the staff and their opinions and utilize the resources of the Office of Human Resources.

Undermining credibility with EEOC by not presenting accurate information, by denying access to information, by not retaining relevant documents, and by not letting EEOC interview relevant witnesses. Recognize that lying to a federal agency can result in perjury charges based on either sworn or unsworn statements. Once an investigation has started, an employer has a duty to preserve all documents that are reasonably related to that investigation. It is a felony to destroy or spoil documents once notified of an investigation.
Engaging in delaying tactics. Remember that prompt responses may result in prompt resolutions. If a subpoena must be issued, enforcement of that subpoena in federal court makes the existence of a charge and federal investigation a matter of public record. EEOC may issue a press release, especially if a fee award is issued to EEOC.
Not taking advantage of EEOC's processes: not utilizing their mediation program, not engaging in settlement discussions during the investigation and not engaging in meaningful conciliation discussions after a cause finding has been issued. Taking advantage of the confidential pre-suit settlement opportunities can prevent an EEOC press release.

Not responding appropriately when a challenge in the organization is discovered. Take advantage of the opportunity to swiftly and decisively eliminate the concern. For example, conduct a meaningful investigation and take effective corrective action to eliminate the problem. Do not let legal maneuvers, or the fact that EEOC is involved, get in the way of doing the right thing.
Retaliating against employees who file charges of discrimination. EEOC takes charges of retaliation very seriously. Train your managers to be very careful about actions that could be interpreted as retaliatory once an employee files a charge of discrimination (even changing an employee’s lunch schedule can appear to be retaliation). EEOC will sue in a retaliation case even if it has determined there was insufficient evidence to support the original discrimination complaint.
Not communicating with EEOC when the investigation is ongoing. If you need additional time to respond, make the request and provide a reason. Don't fail to communicate.
Underestimating the Commission and assuming it won't litigate. Help managers understand that the EEOC is a law enforcement agency. They are not to be taken lightly. If a Regional Attorney wishes to authorize a lawsuit, it will move forward with all its unpleasantness. 
Disability Communication Guidelines

National Disability Employment Awareness Month (NDEAM) is held each October to commemorate the many and varied contributions of people with disabilities to America’s workplaces and economy. The theme for NDEAM 2021, “America’s Recovery: Powered by Inclusion,” reflects the importance of ensuring that people with disabilities have full access to employment and community involvement during the national recovery from the COVID-19 pandemic.

Because language and etiquette shape not only the tone, and often the results of our everyday interactions, it is important to understand the commonly accepted guidelines for effective communication with people with disabilities.
Never Assume. Don’t assume that because you know one person who is blind, deaf, mobility impaired, etc., that you know what the needs or preferences are of any other person with a similar disability. While the disability may be similar, each person is unique with their own set of values, needs, and preferences.

Ask Before Offering Assistance. Because it is impossible to know whether someone needs help or what kind of help is needed, it is important to simply ask. If your offer to help is accepted, then wait, listen, or ask for instructions.

Use Person-First Language. Emphasize the person, not the disability. Phrases such as “person who is blind” or “person using a wheelchair” are more respectful. Words like handicapped, cripple, retarded, and wheelchair bound are not acceptable. Also, assess why or if you even need to include the disability in such phrases at all.

Speak Directly to the Person with the Disability. When communicating with a person with a disability, it is important to take steps to ensure that effective communication strategies are used. Even though an interpreter or attendant may be present, address and maintain eye contact with the person with the disability. Put yourself at their eye level (if possible).

Use Everyday Language. Avoid being self-conscious. Using words like see, walk, or hear will not offend someone who is blind, uses a wheelchair, or who is deaf or hard of hearing. Relax and lighten up. It is important to be natural and use words that occur normally in everyday speech.

Treat Everyone with Respect. People with disabilities are first and foremost people. They possess a wide range of attributes and characteristics, only one of which is the disability. They are neither helpless, unfortunate victims, nor amazing super-heroes. People with disabilities, like their non-disabled peers, want to be treated with dignity and respect, not pity and charity.

Don’t Touch. Do not touch or move anything such as a wheelchair, crutches, cane, or dog/assistance guide without asking permission. These are a part of the individual’s personal space. If the person or equipment needs to be moved, describe what needs to happen and wait for the person to respond.

Don’t Pretend to Understand. Listen and wait for someone with speaking difficulties to finish. Then ask the person to repeat what they said. This is respectful and shows that the communication is important to you. Ask “yes” or “no” questions to clarify the intent of the communication.

Treat Adults as Adults. Never talk down, either in your tone of voice or word choice. Most individuals with intellectual disabilities can understand everyday language. Speak in a normal tone of voice and avoid jargon. If you are not certain whether you were understood, ask the person to repeat some of the information back to you.

Use Common Sense Communication Techniques. To get the attention of someone who is deaf or hard of hearing, tap them on the shoulder before speaking, or stand directly in front of them and make certain you have made eye contact. If the person is blind, identify yourself and any companions by name. Let the person know when you leave the room or end the conversation. Don’t just walk away.
Collaboration and Teamwork in Your Workplace

If you were to do a Google search on the definition of collaboration and teamwork you would end up with multiple definitions. Of course, the shortcut version is a group of people working together usually toward a specific goal. With collaboration one of the key elements is gather people with different skill sets.
In an article on Forbes.com What Everyone Should Know About Teamwork, Luis E. Romero stated, “Teamwork is the key to success in most realms of life and business but it is a challenge in itself. It requires that people manage their egos, develop humility, communicate effectively, resolve conflicts and above all, commit to one another and to a common goal.”
Good teamwork skills include:
  • Everyone knows the goal, and everyone has a role to play
  • Understanding conflict happens and it is not a bad thing and there is no need to complain
  • Being reliable and dependable
  • Respectfulness
  • Good communication with a strong emphasis on listening which reinforces the strong need for interpersonal skills
When you think of strong collaboration skills consider:
  • Self-awareness
  • Willing and able to learn and create opportunities for others to learn
  • Encourage innovation
  • Define success on multiple levels because it is not always just the end goal, but perhaps more purpose driven
  • Able to address challenges and learning from mistakes
  • The ability to use soft skills working with a diverse group of individuals where you have asked for everyone’s ideas, opinions, and to share their knowledge.
Teamwork and collaboration skills can help you improve your productivity. It does not matter whether you are a student, in healthcare, or on a manufacturing floor you will benefit from these skill sets. A Stanford study found that people working collaboratively stuck at their task for 64% longer than those working individually on the same task. If you want to learn more about building your team and methods of making a stronger team, please join us for our program on October 27.
Questions to ask a Mentor

Whether you have a mentor or will be looking for a mentor there are definitely some questions you can ask to engage in the conversation and help you on your path. Consider these questions for an upcoming discussion.
  • If you were where I am now what steps would you take to jumpstart your career?
  • What are some things that you regret not doing earlier in your career?
  • Which professional organizations do you recommend that I join and why?
  • What was a career defining moment for you?
  • Where do you see the __________ profession going?
  • Who mentored you, and what impact did that person or people have on your career?
  • How did you go about building your professional network?
  • What skills do you think I need to get ahead in today's ever-changing workplace?
  • What hard choices did you have to make to get where you are today?
  • If I were writing my resume what tips do you have on what I should include or how I might improve it? 

We are very excited to share the news that Eric Wilson has joined the consulting staff of HR Answers. We know that many of our readers are familiar with Eric and his background. For those of you not so familiar, Eric has over 30 years in the HR profession as both practitioner and consultant. Eric has specialized experience with technology improving business processes and systems. He is a dynamic, engaging, and motivating presenter and thrives on helping individuals and organizations excel and achieve to their full potential.

Senior Consultant
Employer Trend Survey by XpertHR (May 2021) 
Who is leading the DEI efforts? The chief human resource officer is at least partially responsible for diversity equity and inclusion efforts (52%) at more than half of 383 U.S. employers.
Others responsible for the efforts include:
36% CEO, president or owner 
19% social justice work groups or board of directors 
17% no one at all 
15% volunteer employee groups 
11% Chief DEI officer
7% COO 
5% CFO
4% general counsel 
2% outside consultant  
According to the 2021 State of Workplace Empathy Study by Businesssolver.com:
of employees who had the option to work remotely report satisfaction with their employer, 15 percentage points higher than employees who did not have this option
of employees feel they are more productive at home and most say the quality of their work has improved.
of employees believe empathy in their organizations is sufficient, representing no change since 2020.
How Do I Navigate Two Bosses?

Q: I have worked as a manager for my organization for two years. I technically have one director who I report to (Jane) and another (Milo) who I also report to but less officially. Jane and Milo have vastly different concepts of how things need to be handled. Milo is not clear and I very rarely understand what he wants. If I do, it’s because I have asked a lot of questions! I’m not the only one in my organization who has this challenge — in fact, most staff do not know how to communicate with him at all. When I tried to talk to Milo about this, he told me that the entire staff doesn’t know how to communicate and he doesn’t see how that is his problem.

So, I carry out duties as directed by Jane because (a) I understand what she wants and (b) she is my direct supervisor. The problem comes in when Jane makes a decision and Milo has an issue with it … which inevitably is only addressed by Milo to me, not addressed with Jane. Milo is Jane’s boss, so I sort of have to report to each of them. I can’t simply say something like, “I’m sorry, but Jane has assigned me to take care of the task in this manner. I can’t proceed in the way you would like until I get the all clear from her.”

I’m at my wits’ end trying to get the two of them to communicate and to get Milo to communicate properly with the rest of the organization. Jane is pretty understanding about the situation but it’s starting to get out of hand. How do I navigate two bosses?

A: First and foremost, it’s not your job to get Jane and Milo to communicate, and it’s definitely not your job to get Milo to communicate better with the rest of the organization. Those two things are both clearly problems, but they’re above your pay grade so free yourself from whatever is making you feel responsible for fixing these issues. If the people with the power to fix these issues aren’t doing it, you definitely won’t be able to — and you’re just adding additional stressors to your plate that don’t need to be there.

With the conflicting instructions, you’ve got to keep in mind that Milo is Jane’s boss and he has more authority than she does. That doesn’t mean you should just abandon Jane’s instructions when he tells you to do something differently, and you also shouldn’t respond with “I cannot do what you are asking” (your proposed language). That comes across as pretty rigid! Instead, just explain that she asked you for something different and so you’ll go back to her and relay what he wants. For example: “Okay, let me talk to Jane. She’d wanted X, so I’ll let her know that you’re saying Y.” Or, in some situations: “Jane told me to do X earlier. Could I pull her into this conversation so we’re all on the same page?”

You should also have a big-picture conversation with Jane about the pattern — “Milo sometimes gives me instructions that contradict yours. How do you want me to handle it when that happens?”

For the 7th year in a row, Mental Health America (MHA) released its annual State of Mental Health in America Report, which ranks all 50 states and the District of Columbia based on several mental health and access measures. This year, Vermont moved to the No. 1 spot, ahead of Pennsylvania, and Nevada remained last at No. 51. Also, of note, 19% (47.1 million) of people in the U.S. are living with a mental health condition, a 1.5 million increase over last year’s report.

As the pandemic relentlessly persists, we are seeing the highest levels of anxiety and depression reported since the pandemic hit the U.S. in March 2020. This is a troubling trend being fueled by loneliness and isolation. We are also seeing alarming numbers of children reporting thoughts of suicide and self-harm. The 2021 State of Mental Health in America report confirms the trend that mental health in the U.S. continues to get worse and many states are ill-prepared to handle this crisis and policymakers at every level of government need to act immediately.

October 27 is National Mentoring Day.

It was created to highlight the importance of mentoring in all forms. It is the perfect time to celebrate the mentor(s) that helped shape you into who you are today.
"Tell me and I forget, teach me and I may remember, involve me and I learn.”
“A mentor is someone who sees more talent and ability within you, than you see in yourself, and helps bring it out of you."
“Show me a successful individual and I’ll show you someone who had real positive influences in his or her life. I don’t care what you do for a living—if you do it well I’m sure there was someone cheering you on or showing the way.”
“Every single opportunity we’re presented with gives us an opportunity to learn, grow, be inspired — and share that with others.”
Gregory Wade
“If I have seen further it is by standing on the shoulders of giants.”
“Our chief want in life is somebody who will make us do what we can.”
“The delicate balance of mentoring someone is not creating them in your own image but giving them the opportunity to create themselves.”
“We’re here for a reason. I believe a bit of the reason is to throw little torches out to lead people through the dark.”
We hope these quotes illustrate the many benefits that come with mentoring. Whether it’s drawing out your hidden strengths or guiding you through tough decisions, mentors have the power to significantly improve your personal and professional life. If you’re looking for additional ways to better yourself as a leader, join us for Foundations of Leadership on November 18th.
14 Job Search Webinar

27 Soft Skills: Teamwork
2 Prevention of Discrimination,
Harassment, and Retaliation

2 Performance Management

3 HR Lunch Bunch: Year in Review/Planning Ahead FREE!

9 Performance Management

10 Building Rapport

17 Soft Skills: The Art of Negotiation

18 Foundations of Leadership
1 HR Lunch Bunch: Auditing Your HR Department FREE!

2 Employee Recognition

15 Onboarding - Jump Start New Employees

16 Interviewing for Emotional Intelligence

29 Soft Skills: Motivation
Visit our website to see which conferences and events HR Answers is speaking at or attending:
 I had an opportunity to participate in a forum regarding Workplace Culture. It was a great experience. The discussion was lively and a fair amount of ground was covered. One of the gifts that come from an experience like this is the opportunity to learn from others. One of the speakers shared a concept he relies on to help him generate discussion and insight in his consulting. He said one of his favorite questions was, “If the organization could talk, what would it say it needs from me?” 

As I have shared that question with others, there is a moment of quiet reflection as they think about it, and then almost universally, they say, “That’s a really good question. I don’t think I have ever heard anybody ask that before.” I agree…it is a great question because it puts an entirely different spin on assessing ourselves and the needs of our organization
(very appropriate given the tremendous amount of self-reflection that has been taking place over the last year and half).

I think this question can be asked by many people. It is not just an inquiry for HR professionals or business owners. If they could anticipate what the organization might say, it would assist them in making appropriate changes and setting the best priorities and policies. It could be asked by marketing professionals because the answer may suggest a different strategy of promoting products or services. It is a good question for executives because it may reveal that the most important focus is not being addressed. Each department could ask that question and perhaps learn what the rest of the organization would want them to do differently. Especially having employees asked and then really listen to their responses. Listen for wants their vs. needs and what they as individuals can bring to the table to help our organizations. I also think on a personal basis this a great question to ask in our families. Think about what our instincts might tell us if we asked, “If this family unit could talk, what would it say that it needs from me; or from us.”

I love it when a simple turn of a phrase can prompt a greater understanding of our dynamics or cause us to think about relationships or practices in a new way. It broadens our critical thinking skills; it refreshes concepts leading to better decisions and maybe innovation can take place. Reversing our typical thought process brings us new insights. We can ask if our breakthrough ideas have relevance for particular groups or aid us in seeing what has been unseen so far. New thoughts lead to new solutions or inspiration about how to address opportunities or problems. Isn’t it great when changing a question can be so revealing? 

So, my suggestion is that you use this technique to broaden your horizons and release your creativity (one of the top skills people are looking for and needing). I am betting that you will find that a simple inquiry leads to a powerful strategy that generates a new way of thinking and acting on behalf of the organization, and maybe in your personal life as well. 

Judy Clark, Principal and Founder
Editor: Deborah Jeffries, SHRM-CP, PHR, CPC: Advantage is published monthly and is designed to provide information on regulations, HR practices, and management ideas and concerns. The intended audience is managers, supervisors, business owners, human resources professionals and labor relations professionals. If you have questions about the content, an opinion about the information, or questions about your subscription, please call us at 503-885-9815 or email us at info@hranswers.com

Information and advice offered through Advantage should not be construed as legal opinion. The material contained herein will not apply to all circumstances or to all organizations. Use it as a resource and reference. Should you feel legal advice is required, please consult with your legal counsel.