Posted By Administration,
Wednesday, October 5, 2016
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Contributed by Tim Kuppler
I spent 15 years learning and applying culture insights as a senior executive, consultant, and coach across multiple organizations before I started to proactively reach out to top culture pioneers and experts to learn about their culture facts and fundamentals. We can’t learn much about culture from the popular press and most social media is dominated by over-simplified culture content. Critical insights from the top culture experts in history are unfortunately “secrets” to the vast majority of leaders. Other leaders turn away from the fundamentals of culture to more exotic and superficial solutions.
Edgar Schein, arguably the top culture pioneer, said in his closing comments at the Ultimate Culture Conference last year that we need to put the culture principles next to a good theory of change. So what are some of the most important culture and change principles?
Below are 8 critical culture change secrets I have learned that most leaders, and self-anointed culture experts, typically don’t understand and leverage to improve results. Individual tips and keys have little use with a subject like culture so I’ll connect the explanation of these insights.
1. Culture is built through shared learning and mutual experience.
Edgar Schein mentioned this in an interview last year and I immediately connected it with habits that worked for me to consistently engage my leadership team and the broader organization when I was an industry executive. The foundation of effectively shifting or evolving culture does not come from popular approaches like:
Defining values and “aligning” everything in the organization to them (even thought this approach is widely advocated,
Training masses of people on values and expected behaviors,
Focusing on clarity and alignment, engagement, or other areas of the work climate,
Focusing on improving a few systems like hiring, performance management or reward and recognition.
Change efforts will likely include work in some or all of these areas but engaging leadership and the broader organization in a journey of shared learning and mutual experience is at the core of effective culture change or shaping efforts. Leaders can intentionally facilitate shared learning and mutual experience so improvements are clearly identified, captured, and spread to deliver results across their team in a phased improvement approach.
Culture is built through shared learning and mutual experience.
2. Don’t focus on trying to change culture. Focus on a problem, challenge or goal and how culture is impacting the related work positively and negatively.
This fundamental is consistent with insights from Edgar Schein and I fortunately stumbled on it early in my career. I was a top leader and on the hook for growth, profit, customer experience, quality, safety and other critical performance priorities. I also cared tremendously about culture and felt it would be a key to our success. Zeroing in on a top mission or performance priority and engaging the broader organization more extensively in this one critical area delivered results. It also accelerated the shared learning and mutual experience since it was also focused on a meaningful priority for our entire team.
Don’t create a general “culture plan” where the connection to the results of the organization is unclear or debatable. Engage the organization to a much greater degree on one of your top priorities so you drive the shared learning, mutual experience and results faster than general culture work.
3. Results or consequences are necessary for any new cultural attribute to form.
Results will actually precede the cultural change. This important insight runs counter to arguments from some leaders that think they don’t have time for culture since they need results now and culture change takes a long time. Focusing the work on a top mission or performance priority will actually increase the likelihood of seeing results in a meaningful area AND supporting the targeted cultural shift.
Behaviors that lead to positive results will spread. Schein said these behaviors will not be spreading because employees were “told to” but because “they work.” I love his explanation: “if it’s successful, and people like it, and it becomes a norm then you can say it’s become a culture change.” So, what’s a norm? That question brings us to our next secret.
If it is successful, and people like it, and it becomes a norm, then you can say it has become a culture change.
4. The vast majority of what you hear about culture is actually focused on climate. It’s critical to understand the underlying cultural norms or expectations that are actually driving the vast majority of behavior we see.
I like calling these expectations the “unwritten rules” that drive our behavior. For many years, I thought I was effectively dealing with the subject of culture when we worked on improvements related to our values, involvement activities, management systems, communication habits, recognition, and many other areas. Some of these changes had an impact on culture but I struggled to gain a clear language around the behavioral problems we encountered and our “culture” survey results had already improved dramatically. I later found that engagement and nearly all “culture” surveys actually only measure aspects of the organizational climate. The climate is incredibly important but gaining an understanding of the underlying culture is critical for accelerating change efforts and delivering sustainable results.
My world changed when I met Rob Cooke and learned about the language, measurement, and power of behavioral norms. People are bombarded by cultural norms at work. Edgar Schein once said that 90% of our behavior in organizations is driven by cultural rules. The basic language of Constructive, Aggressive-Defensive, and Passive-Defensive expectations or norms from Human Synergistics helps me deal with client challenges every day.
- Aggressive-Defensive expectations such as maintaining unquestioned authority, outperforming peers, never making a mistake, opposing things indirectly, and many others don’t lead to sustainable effectiveness.
- Passive-Defensive expectations also exist in organizations and these expectations such as not “rocking the boat,” making a good impression, asking everybody what they think before acting, and doing things for the approval of others may also undermine effectiveness.
- Constructive expectations such as taking on challenging tasks, treating people as more important than things, and resolving conflicts constructively do lead to sustainable effectiveness for individuals, teams and the overall organization.
90% of our behavior in organizations is driven by cultural rules.
It’s critical to move beyond the behavior we see in the organizational climate and understand the underlying culture. Leaders need to specifically understand how the climate and culture are impacting their work on top mission or performance priorities. The “key learnings” leaders gain from this understanding are invaluable.
5. Define a “FROM-TO shift” from defensive to constructive expectations.
I first learned about the FROM-TO shift language from Larry Senn. The “TO” side of this concept is advocated all over the place. Organizations are defining values and expected behaviors but most have no language for the “FROM” side. I believe the defensive expectations I previously mentioned, both passive and aggressive, are the most critical part of understanding the “FROM” side of this concept. We need to understand these norms as a foundation for understanding beliefs, assumptions, mind-sets, and other factors that help to explain why they exist.
Some leaders consistently misdiagnose their culture problems and jump to conclusions without gaining any deeper cultural insight. My favorite example is a top leader that thinks there is a major accountability or ownership problem in their organization. The actual cultural issue could be driven by perfectionistic, approval, avoidant, oppositional, or other norms in the current culture that current leadership, including the top leader, is perpetuating in many ways. Focusing on the “TO” behaviors we want does not address the root cause of the problems we see on the surface.
6. Repeatedly engage groups to define and continuously refine plans to improve results with a meaningful mission priority AND support the targeted FROM-TO shift.
Leader’s that engage their organization in defining focused improvement plans for a top mission priority and supporting the associated FROM-TO shift will dramatically increase the likelihood of success. The key is to move beyond general feedback approaches on mission priorities OR culture-related areas (behaviors, values, etc.).
Instead, engage groups in prioritized improvement feedback for a key mission or performance priority (growth, customer experience, etc.) that will also support the targeted FROM-TO shift. For example: How should we improve our new customer growth plans AND shift FROM perfectionistic aspects of our culture TO an achievement-oriented focus as a team? Far more explanation and sharing of specific stories, behaviors, and examples are obviously needed but you get the idea. Focus improvements on a mission priority (what) AND the targeted cultural shift (how). It’s also important to identify any positive aspects of the culture that may be further leveraged as part of improvement efforts.
Plan ahead to re-engage groups periodically to provide prioritized feedback on what’s working and what’s not after you make progress on implementation (typically every 3-6 months). Identify the top improvements to leverage what’s working and to address what’s not.
7. It’s critical to adjust management, communication and motivation systems/habits to translate plans to effective action and shift the operating model.
The problem in most organizations is not identifying improvements that will have a positive impact on culture but implementing them. I am sure we all can relate to Edgar Schein’s point that you only begin to fully understand a culture when you try to change it. It’s far easier to engage leadership and the broader organization in defining improvement plans than implementing them.
Jim Collins said “a culture of discipline is not a principle of business, it is a principle of greatness.” There are three areas of discipline nearly all organizations involved in culture-related change efforts must refine and connect:
- Management systems – especially the basic habits for senior leadership to define, monitor and manage strategic priorities, measures, and improvement plans.
- Communication systems – especially implementing or improving the formal and informal habits for communicating the status of priorities and plans along with regularly obtaining feedback for improvement.
- Motivation systems – especially intentional efforts to dramatically increase the recognition of team members that display the targeted constructive “TO” behavior in the FROM-TO shift and achieve results.
The lack of rigor in these three areas dramatically amplifies culture related problems and substantial adjustments are nearly always a part of major transformation efforts.
A culture of discipline is not a principle of business, it is a principle of greatness.
8. Culture transformation starts with personal transformation.
I love this point from Larry Senn. You can effectively cover the first seven “secrets” but your change efforts will bog down as individual behavior and mind-set issues continue to persist, especially with top leaders. Top leaders must gain an understanding of how their behavior is impacting the behavior of others. Is that “impact” constructive, passive, or aggressive? How are they reinforcing the current culture? What individual and team development efforts need managed in parallel with the overall organization transformation?
Culture is not an initiative. Culture is an enabler of all initiatives.
My favorite questions in initial executive interviews are: 1) Why is this change effort important to you personally? 2) How are you reinforcing the current culture and contributing to the culture frustrations that persist?
The answers to these questions may lead to important leadership “aha’s”, as Larry Senn calls them, or reveal how difficult the journey will be to uncover those aha’s.
It’s incredibly rare for change efforts to effectively leverage these basics. I interact with consultants and leaders across hundreds of culture-related transformations and literally 1 in 100 directly address these areas. I am currently in the middle of six complex projects where these areas are being proactively addressed and it’s exciting to see the results. Each organization is from a different industry and their initial work is focused on a different mission priority but many similar challenges are being encountered and resolved. These “secrets” seem common sense but they are not commonly advocated.
If you’re ready to apply these insights as part of your improvement plans and unlock the power of culture to support your purpose / mission:
Define the purpose of your improvement effort and complete qualitative (focus groups, interviews, etc.), and likely, quantitative culture analysis (survey). Obtain external support if you are not experienced with this work or want to increase the likelihood of success.
Engage top leadership to review the results of the culture analysis and capture key learnings. Define a top mission or performance priority (growth, customer experience, etc.). Develop initial plans to engage the organization in new ways to improve related strategies / plans and support a FROM-TO shift in the culture.
Engage the broader organization and obtain prioritized feedback as part of the effort to finalize improvement plans. Define when these groups will be re-engaged to provide prioritized feedback on what’s working and what’s not.
Manage the change as part of refined management, communication, and motivation systems. Connect any organization development plans to individual development efforts, starting with top leaders.
These insights are only a small part of what’s necessary for meaningful culture change and sustainable results. They help to build initial momentum and results necessary for any new cultural attribute to emerge.
I couldn’t be happier that most culture pioneers and experts are open to the idea of sharing their insights and collaborating to make a meaningful difference. It will take time but these and other “secrets” will eventually be discovered by the average leader. It will be exciting when far more leaders gain the confidence to proactively deal with this topic in a serious, diligent, energizing, and impactful way.
We need more culturally intelligent leaders. What culture insights or “secrets” can you add to help leaders make a meaningful difference?
The descriptions of the cultural styles and norms are from the Organizational Culture Inventory® by R. A. Cooke and J. C. Lafferty. Download this article for sharing along with a special Corporate Culture Summary from Edgar Schein.
Reprinted with permission from “8 Culture Change Secrets Most Leaders Don’t Understand” from CultureUniversity.com. © 2016 All rights reserved.
About the Author
Tim Kuppler is the co-founder of CultureUniversity.com and Director of Culture and Organization Development for Human Synergistics, a 40+ year pioneer in the workplace culture field with the mission of Changing the World—One Organization at a Time®. He leads collaboration and partnering efforts with culture experts, consulting firms, industry organizations and other groups interested in making a meaningful difference in their organization, those they support, and, ultimately, society. Human Synergistics is home of the Organizational Culture Inventory, the most widely used and heavily researched culture assessment in the world, and the Annual Ultimate Culture Conference, the premier organizational culture event. He authored the 2014 book - Build the Culture Advantage, Deliver Sustainable Performance with Clarity and Speed which was endorsed as the "go-to" resource for building a performance culture. e previously led major culture transformations as a senior executive with case studies featured as part of the 2012 best-selling book – Leading Culture Change in Global Organizations. He was also President of Denison Consulting, a culture assessment and consulting firm. He is an accomplished speaker and recognized as a Top 100 leadership conferences speaker on Inc.com. His 20 years of culture and performance improvement experience includes the rare mix of executive leadership, coaching, and consulting knowledge necessary to help leaders quickly improve team effectiveness and results as they focus on their top mission / performance priorities, challenges, and/or goals. He networks extensively in the workplace culture field in order to learn and share the latest insights across many experts. Email Tim to learn more.
Posted By Administration,
Wednesday, September 28, 2016
Updated: Wednesday, September 28, 2016
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Christine M Meadows, Vigilant
“I couldn’t talk to her; she was totally hysterical.”
“I don’t even think of you as being black.”
“That’s so gay.”
Micro-aggressions are those comments and interactions at work that leave employees feeling uneasy, angry, or upset – sometimes in ways that aren’t easily explained. Using a racial slur is an overt discriminatory act. Micro-aggressions can come from people who mean no harm. The question to the multi-racial co-worker, “What are you?” may come from a real curiosity, but is rude and could carry an additional message that dismisses the racial identity of the person who hears it. In isolation these acts may not quite rise to the level of legal discrimination, but that single interaction communicates that a person is “other” or an outsider. Add up the experience of daily, weekly, and monthly micro-aggressions, and you could have a legally hostile work environment.
Micro-aggressions in the workplace manifest in different ways. Consider the following examples:
- Men talk to each other during a meeting and ignore the woman at the table, talking over her when she tries to contribute;
- A manager tells an applicant of Chinese decent that he "speaks excellent English,” though it is obvious from his resume he was born and raised in the United States;
- An African American manager gives a presentation and his Caucasian co-worker says she "had no idea he was so articulate.”
These types of interactions are not likely to find their way to upper management. Employees who already feel marginalized may never bring the issue forward, afraid of being labeled a whiner or of facing an unsympathetic supervisor or human resources representative. Confronting co-workers with the harmful impact of their statements may just make it worse (“I meant it as a joke/compliment. Why are you so sensitive?”), creating an additional burden on the employee who is already feeling marginalized. If micro-aggressions are part of the organizational culture, the individual also has no reason to believe that organizational leadership will address it. As a result, these daily interactions can make an environment so intolerable over time that employees look for employment elsewhere.
The truth is we probably have all been guilty of engaging in some form of micro-aggression at some point in time, intended or not. These subtle discriminations are born from our own internal biases. Addressing micro-aggression must start with recognizing these internal biases and actively attempting to counter them. As an individual contributor within your organization, you can continue to learn and be honest with yourself about your own personal biases. Recognize that your experiential reality may be different from people of different races, gender, ethnicity, and age. Don’t be defensive about the fact that you have preconceptions or defend the basis for your personal biases. Acknowledge that the feelings of others are valid and based on their life experiences. Be willing to discuss your biases and recognize how you may have hurt others, even unintentionally. Have the courage to call attention to micro-aggressive behavior when it occurs. For example, “Steve, we’ve been talking over Sue and she has an interesting point. Let’s give her our full attention.” Micro-aggressions can make people feel excluded; be vigilant about supporting colleagues who may feel marginalized.
In addition, organizations must work on a broader scale to create a culture in which everyone treats each other with respect. To accomplish this, many major corporations regularly engage in implicit bias training with their employees to increase their individual awareness. In a culture where it is safe, even encouraged, to bring up and discuss perceived micro-aggressions, the behavior tends to decrease. For example, the woman who was born in Ohio and is of Asian-American descent when asked, “Where were you born?” may perceive the question as one framing her as a stranger in her own country. The co-worker may have meant, “Were you born in Columbus?” and will be more likely to rephrase the question in a sensitive manner if the organization can provide safe and effective communication tools that bring micro-aggressions into the open. By discussing these issues, everyone gains a better understanding of each other. For that to occur, both employees must feel safe and trust the environment to allow honest conversations to happen.
While it sounds deceptively simple, addressing micro-aggressions in the workplace is not an easy thing to accomplish. It requires a long-term commitment to organizational values that holds everyone accountable to themselves and their co-workers for managing their biases in the workplace. The bottom line is that organizational change starts with individuals, and as individuals, it starts with us. Respect each other, everyone, no exceptions.
Christine Meadows is an employment and labor attorney at Vigilant.
harassment in the workplace
Posted By Administration,
Saturday, September 24, 2016
Updated: Saturday, September 24, 2016
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Meet Jessica Rohman, Director of Content, Great Place to Work® at the NCHRA Engagement & Recognition Conference on Wednesday, September 28th at Golden Gate University. Jessica will present "Engaging and Retaining Your Future Workforce" (first session, 8:30am).
>> Read more and register here.
Discover strategies for achieving true employee engagement and a successful recognition program! #NCHRAEngage
Great Place to Work® has crafted its perspective by learning from great leaders, surveying millions of employees, and examining thousands of the best workplaces around the globe. The company thrives on sharing the insights they've gleaned from their work with companies of all industries and sizes in order to help organizations around the world build, sustain and scale their great culture. Here are highlights from the 2016 Fortune 100 Best Companies to Work For® report (white paper) -- seven ways high-trust organizations retain talent.
1. DEFINE YOUR COMPANY’S PURPOSE AND CONNECT PEOPLE TO IT.
It’s easy to understand the difference your actions make in the world if you are the president of an organization, or a nurse who is saving patients’ lives. It can be more difficult to make that connection from the factory floor, behind a cash register, or even from a computer screen.Therefore, it’s critical that leaders and managers clearly define the overarching purpose of the company in the world, and just as importantly, connect each employee to their specific role in driving it forward through their work. This way, no matter where a person sits in the organization, they know that their actions play a role in the broader fate of the company, and ultimately, in the world at large.
2 TRUST AND EMPOWER EMPLOYEES TO DO THEIR JOBS.
Increasingly, highly-evolved workplaces and leaders are coming to understand that tapping into the collective knowledge of an organization is the key to success. Unlike the command-and-control ethos that has traditionally characterized many organiza-
tions, more and more of today’s CEOs are incorporating openness, transparency and employee empowerment into their workplace cultures.
3 GIVE EMPLOYEES A VOICE.
Nothing shows an employee more clearly that they make a difference to the company than the authentic desire, on the part of leaders, to actively seek their ideas. As such, leaders at great workplaces work tirelessly to stay connected to employees in all parts of the company, including on the very front lines. And, at the core of this behavior is the belief that employees have something valuable to say. By giving employees multiple avenues to share their ideas, questions, and concerns, leaders only amplify the message that staffers are an important part of the company’s success.
4 SHOWCASE THE CUSTOMER.
In many organizations, only a small percentage of employees actually work directly with the company’s client base. However, establishing the link between an employee’s work—regardless of where they sit—and the final impact it has on the end customer can be powerful in creating a sense of purpose. Examples of ways to make this connection include:
> Internal communication campaigns that inspire pride in employees – including mentions of where their products are showing up
in the press, sales numbers, and more.
> Site visits to retail stores or customer locations.
> Incorporating customer stories and feedback into corporate communications.
> Bringing customers/patients onsite to talk about the impact the company’s products or services have in their lives.
Many of the Best Companies across industries create opportunities for employees to interact directly with the customers/users of their services.
5 MAKE YOUR WORKPLACE A COMMUNITY.
Working with a group of strangers is one thing; collaborating with a valued community is a completely different proposition. A universal quality of great workplaces is the strong sense of family and team experienced by employees across the organization. In fact, at this year’s 100 Best Companies to Work For®, nearly 9 in 10 employees report: There is a “family” or “team” feeling here. Building a close community with colleagues only furthers work as more than “just a job.” And, when the going gets tough, these relationships can be critical touchstones for employees in making their days more enjoyable—creating another reason to ride out difficult times with the company rather than jump ship for another opportunity.
6 RECOGNIZE EMPLOYEES’ CONTRIBUTIONS.
Whether it’s via birthday or anniversary celebrations, a personal thank you card, kudos at a staff meeting, or a high-class celebratory gala, the recognition and appreciation of employees is important to the understanding that they—as a person and as an employee—make a difference to the company. “One of the most powerful ways to help people understand that they are making a difference at your company is by recognizing them for their contributions,” says Great Place to Work® Partner, Anil Saxena.
7 MAKE “GIVING BACK” PART OF YOUR BRAND.
One of the greatest strengths across the 100 Best Companies to Work For® is a strong commitment to volunteerism and philanthropy. Not only are employees involved in these efforts in a very hands-on way, but volunteer opportunities are woven into the employer brand and the employee value proposition. This way, all employees have an opportunity to feel that because they are a part of their company, they are able to contribute to their community in a meaningful way. (See sidebar: Clif Bar on white paper* detail.)
Click here to read *the complete white paper....
Engagement & Recognition Conference
Great Place to Work
Posted By Engagement & Recognition Conference,
Wednesday, September 21, 2016
Updated: Tuesday, September 20, 2016
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By Joe Larocque
Co-Founder & Senior Director of Product Management, GuideSpark.
Around 3 years ago, we got a call from one of our first and most innovative customers, Adobe, that they were throwing out their annual performance review and employee ratings. They called us to work with them on the big challenge of communicating this huge shift they were creating called a “check-in.” This was the first of hundreds of calls we have received as companies are strategically shifting how they measure and manage employee performance.
The redesign of performance management is undoubtedly the most significant HR communications challenge I’ve witnessed since we founded GuideSpark in 2008. In fact, it’s estimated that over 60% of companies are currently in transition to a rating-less, feedback-centric model and if you’re thinking that this is just a small company thing, you may be surprised to learn that 10% of the Fortune 500 had made the transition at the end of 2015, and it’s anticipated that the number may grow to 2-3x by end of 2016.
Over the last 3 years, we’ve had opportunities to work with some of the best employers to enable big shifts and expand our communications expertise into this important area. Today, we are launching our talent solutions to meet the needs of our customers, and I wanted to offer some of my key learnings in supporting over 70 companies as they worked through this.
Listen, learn, respond.
Just about every company I talk to is taking this leap. They recognize that the current way of doing things isn’t working. Many of our customers come into the change with eyes wide open, realizing that the new performance management is in a work in progress that will start with generic best practices and ends with a customized performance management design customized for their business and culture. In fact, one very large employer that we’re working with is doing a 3-year pilot of their new performance management process prior to roll-out. The best companies expect change going in and they install a flexible, adaptable infrastructure that allows them to listen to employees and managers about how things are going, make changes and then communicate out. Your success will be tied to how well you can adapt and how agile you can be.
Understand the User Journey.
Let’s be honest, performance management has a ton of baggage – it’s as important as it is despised by employees and their managers. One key design principle for the new performance management is to move it from being a program that’s owned and policed by HR to one that is embraced and valued by the business. You must inspire, connect and make the case for why employees should care. From there, you will have permission to get into the details around process, programs, policies, new systems, roles/responsibilities and competency building. But perhaps the most important piece here is nurturing that learning over time – hitting employees and managers on an informal, continuous basis with bite sized communications that nudge them to have more frequent, substantive interactions. Think: 1-2 minutes tips that can be consumed in line at the grocery store and put in place that week.
No one is born being great at feedback or coaching.
The new performance management is built on ongoing feedback and coaching. Make no mistake, these are muscles that you’ll need to build in your organization because these two competencies are neither intuitive nor natural. Understand that when it comes to feedback, you need to enable your organization to be great at not only giving it but great at receiving it and great at soliciting it. All 3 are required. Many companies we work with feel as though their managers are very short-term, task focused and so moving them to a place where they are pulling as opposed to pushing will take time.
Anticipate the ripple effects.
As you put performance reviews and ratings on ice, it’s important to think about the effects holistically. For example, for many companies the relationship between compensation and performance completely changes. It becomes less about past performance and more about long-term value (performance, skill scarcity, cultural behaviors, etc.). Think about how you’ll empower managers to make compensation decisions without the crutch of the rating. Also, if growth and development is really at the center of your performance management philosophy, how will you integrate career conversations and developmental resources. The relationship between goals, performance, career and compensation will undoubtedly change and it’s important that managers be brought up to speed.
Back to Adobe, because in four years, they are proving out the model with a 30% decrease in employees quitting, a 50% increase in involuntary departures and a recouping of most of the 80,000 hours spent by managers annually on reviews.
As you execute on your own performance management transformation, don’t let communications and training be an after-thought. There’s a lot to cover and without an adequate communications plan you lack the bridge that connects the design of the program to the outcomes that you expect.
Meet Joe Larocque at the NCHRA Engagement & Recognition Conference - September 28th at Golden Gate University
Qualifies for 6 SHRM Professional Development Credits (PDCs) / 6.0 HRCI Recertification Credits of which 1.0 qualifies for Business credit and 1.25 qualifies for Global credit.
Register and Get Information
Joe Larocque, Co-Founder and Director of Product Management, GuideSpark
The Employee Lens: A Look at Engagement From the Other Side
Top employers continually reinvent the workplace experience - with technology, social media and demographic shifts all driving increased demand for transparency and trust. In today’s world, employers must raise the bar and establish a true connection with employees in order to engage and retain top-skilled talent. Find out how to build trusted, meaningful connections with employees to drive engagement, retention and productivity, plus examine the growing relationship between Human Resources and Marketing.
engagement & recognition
Posted By Laurie Pehar Borsh,
Wednesday, September 14, 2016
Updated: Wednesday, September 14, 2016
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By Robert Neale, Partner and Kim Thompson, Partner - Fisher & Phillips
Neale will present, Hiring Foreign Workers: Visas, I-9s and Other Considerations, at the Global Workforce Conference tomorrow, September 15th in Santa Clara. If you are local to the Bay Area, and not planning to attend, it's not too late to register (at the door). Get more information here. Qualifies for 6 SHRM PDCs / 6 HRCI Recertification Credits - Global and General. Follow updates from the event on #NCHRAGlobal. Fisher & Phillips is a Global Workforce Conference sponsor.
SSN Mistake Leads To Million Dollar Verdict
How Can You Avoid A Similar Fate?
A federal court in California recently ruled that a job applicant’s admission that he used a false Social Security Number (SSN) cannot be the basis for disqualifying him from employment on good moral character grounds. The court awarded the plaintiff over $1 million as a result of the employer’s misstep, which should serve as a wake-up call to all employers when it comes to handling SSN issues.
Employer: “Former False SSN = Lack Of Integrity”
Years ago, Victor Guerrero entered the United States as a child from Mexico. As a teenager, he used a false SSN to seek employment. Guerrero eventually became a lawful permanent resident and then a naturalized U.S. citizen. By legalizing his immigration status, he was able to obtain a valid SSN.
In 2011, Guerrero submitted an employment application to become a corrections officer with the California Department of Corrections and Rehabilitation (CDCR). He passed the written and physical exams and met all of the other job qualifications.
But during his interview and routine background check, Guerrero admitted to previously using a false SSN to seek employment. The CDCR denied his employment application and sent him a rejection letter stating that his past usage of a false SSN showed that he was “not suitable to assume the duties and responsibilities of a peace officer.” The letter also stated that using the SSN showed a “willful disregard of the law” and a “lack of honesty, integrity, and good judgment.”
Guerrero filed a lawsuit against the CDCR in the U.S. District Court for the Northern District of California, seeking damages based on a violation of Title VII of the Civil Rights Act of 1964. He argued that as a Latino job applicant, he was subjected to national origin discrimination because the job application process required him to disclose that he had used a false SSN in the past.
Court: “Policy As Applied Is Discriminatory”
The court held that while California law required the CDCR to conduct a background investigation to ensure good moral character, the “good moral character” hiring policy had a significant disparate impact on Latino applicants like Guerrero, even though it was facially neutral. In light of that, the CDCR had a duty to apply the relevant EEOC factors – which it failed to do – resulting in the court holding in favor of Guerrero on the Title VII disparate impact claim. The court ruled in his favor and awarded $1,186,307 in attorneys’ fees, $145,972 in expenses, and $140,362 in back pay.
Issue Has Become More Common
As an increasing number of formerly undocumented individuals obtain the legal authorization to work in the U.S, addressing false SSN issues has become a more frequent occurrence facing employers. In 2012, it was estimated that more than 600,000 undocumented individuals were issued temporary employment authorization cards under President Obama’s Deferred Action for Childhood Arrivals (DACA) program.
Armed with valid authorization for employment, an individual is eligible to seek a valid SSN from the Social Security Administration. Once an individual has a valid SSN, a current employee, who may have presented a false SSN when originally hired, may now come forward with a new SSN and seek to update relevant employment records.
Employers, especially those in California, need to tread very carefully when presented with evidence of a new SSN and information that the employee originally presented a fake SSN. In addition to this recent ruling, the state has enacted laws that prohibit adverse treatment of an employee who comes forward with a new and valid SSN.
Employers who consider past immigration status and associated illegal activity attributed to that status, such as using a false SSN to seek employment, may find that their actions are challenged as unlawful discrimination. As Guerrero’s attorney, Marsha Chien, said in a statement: “If discrimination like this is allowed to stand, millions of hard working people who are legally allowed to work in the U.S. will be left without the means to support themselves and contribute to our economy.”
What Should You Do?
You need to be aware of the interplay between employment discrimination laws and federal and state immigration laws, in particular when it comes to ensuring that employees are lawfully permitted to work in the United States. If you learn of a possible SSN discrepancy or mismatch, either through a letter from the Social Security Administration (SSA), a third party (such as an individual or a governmental agency), or from the employee directly, you should take certain steps to ensure accuracy in your own records and that correct information is communicated to the SSA.
The first step should be to check internal records to ensure that the correct SSN is listed in the employee’s files. Taking prompt steps to correct errors or to address the situation will show good faith on your part and diminish any indication that you had constructive knowledge that an employee was working without legal authorization. You should never ignore information relating to discrepancies between an employee's name and SSN.
If you receive a mismatch or SSN verification letter from the SSA, you should check your internal records, communicate the information to the employee in question, correct your records (if there was an error), respond to the SSA as indicated on its letter, and insert any notes of explanation, as warranted, in the employee’s personnel file.
Depending on the credibility of the information received alerting you to the possibility of a false SSN, you may need to take additional steps, up to and including termination of the worker’s employment. However, you should seek legal guidance before making any decisions based on an allegation of using a false SSN.
You are encouraged to adopt a written immigration compliance policy and to train all relevant personnel on the importance of adhering to it. You should avoid “citizen only” or “permanent resident only” hiring policies, unless you are required to do so by federal law or based on a federal contract. In most cases, it is unlawful to require job applicants to have a particular immigration status.
Finally, you should follow the fundamental rule of workplace law: be consistent with all employees and new hires. Following the appropriate I-9 practices will help you minimize the risk of discrimination charges and exposure for failing to comply with Form I-9 regulations.
Fisher & Phillips