EEOC – Page 8 – k8bisch LLC

I wear an Apple Watch. I have since they debuted in April 2015. I love it even though I rarely use all of its functionality. I track my calories burned, whether I work out, get all the notifications from Twitter to reminders to actually breathe. (Little nugget – I have only missed my stand goal twice in nearly four years.) I’ve metric-ed myself to death with Ive (my watch’s name).

Yet, I would never share all of this information with an employer. You can tell where I’ve been, whether I went up a flight of stairs, or my heart rate at a particular time. You’d be able to figure out so much about me, my habits (good and bad), and could even use the information to determine if I’m a good employee. (She sits too much when she should be chatting with customers or getting parts.)

My personal beliefs of biometrics are part of the reason I’m less-than-enthusiastic about recommending employers use them. I love the idea of determining if there’s a better way to lay out a manufacturing floor, whether we could reduce real estate costs by encouraging hot-desking, and I’m even for handing out Apple Watches to employees for wellness purposes. But I just can’t get endorse an employer gathering this data and then making employment decisions based on the data.

My biggest concerns surround privacy and the potential for misuse of personal health information. Employers don’t get to know what I do off work provided it doesn’t affect the workplace. If an employer knows, could I get terminated for spending too much time at a movie theater rather than reading business books? What about not spending the night at my house but at a friend’s? Biometrics can allow data gatherers to be the Big Brother technology has often been portrayed as.

As for health information, biometrics are implicated by the Americans with Disabilities Act, Genetic Information Nondisclosure Act, and many state laws. Imagine being an employee in a wheelchair where steps taken are not going to be tracked. Does that mean that that employee is not going to be considered when the health data is aggregated into an analytic tool that determines who should be promoted? Or imagine being an employee who struggles with his weight who has trouble meeting his step goals. When his fitness goals are not met, does that mean he could be terminated, maybe even in an effort to reduce overall health costs. (This would likely be unlawful under ERISA, but that might not stop an overly cost-conscious employers.)

To this end, I recently went on XpertHR’s HR Podcast to discuss a new decision out of Illinois on biometric data collection and the possible impact on employers from coast-to-coast. I encourage you to listen. You can listen here.

Photo by Alvaro Reyes on Unsplash

“Do CEOs get trained on harassment?” That was the question from a lovely individual who recently went through the wringer of having to let a C-suite-level leader go in her organization. My answer was “they should.”

Based on media reports over the past year, it doesn’t appear that CEOs, anyone in the C-suite actually get harassment training. They may pay for training for their own staff and even for managers, but requiring the attendance of CEOs and even boards of directors appears to be few and far between. In just the past year, CEOs at the following companies have either stepped down in the midst of scandal or were fired:

These are prominent companies. Companies with significant public profiles. Leaders who should have known better. Leaders who did not receive training, who did receive training and didn’t comprehend the consequences, or who simply didn’t care. It’s quite possible that’s where we are – some leaders may believe the rules do not apply to them.

The law has a different view. The law says that CEOs ARE your organization. When they engage in harassment, the organization is automatically liable. (Yes, you read that correctly. Automatically. Look at Section VI in the link.) Because CEOs – no matter the size of your organization – are your public face, they are the “alter ego” of the organization. What they do binds the organization in business and in harassment. For this reason, CEOs need to understand the gravity that comes with their bad decisions and actions. They must understand that sending an inappropriate text, making a sexual request, or touching an employee improperly has significant consequences. That it can even force the closure or bankruptcy of the organization. It could be the end of the road.

So, I’m issuing you a challenge HR friends. As you get ready for 2019 and you organize your training schedule for the year, include your leaders in harassment training. Involve your board of directors. Make sure that they attend. Go over what happens if they engage in harassment. Explain the investigative process –their technology will be reviewed, including texts and emails. If you do this, you’ll help protect your organization and hopefully prevent harassment.

Quick story – I once did two trainings for a company. On the first day, I trained all the managers and leadership, including the CEO. The second day, I trained employees. To show how important the training was to the company, the CEO introduced me. He started with the expected “we take this very seriously” and then said, “I think you’ll like Kate, she’s loose.” Now, he meant that I was not a stuffy attorney, but nevertheless, that was lesson number one of the training. He turned all sorts of red, apologized immediately, and we all had a laugh. I promise you, no one in that organization who was there will forget that and everyone learned something.

If you need help planning your training, take a look here.

Tag: EEOC

CEOs & Boards Need Training Too

Photo by Tyler B on Unsplash