HR Legal & Compliance Excellence - October 2022

On the Cover

Articles

10

Protecting and supporting LGBTQ employees - Andrew J. Neiman, Associate Attorney, Fortis Law Partners

17 Gig Economy: FTC Ramps Up Gig Worker Protections

More power to gig workers

- Leonard L. Gordon, Alexandra Megaris, Partners, Michael Munoz, and Joshua Nace, Associates, Veneble LLP

21 DEI: The Problem And Solution To Workplace Issues Faced By Talented People Of Color Addressing and preventing diversity hire syndrome

- Dr. Timothy L. Brown, Director, People and Culture, WorkReduce

Employee Safety And Health Must Be Of Utmost Priority For Organizations

Actors, like employees, deserve to work in a safe and comfortable environment

- Dana McDaniel Sumpter, Associate Professor, Organization Theory and Management, Pepperdine Graziadio Business School

29 Why Good Companies Want Arbitration—But Not Mass Arbitration—Of Employment Disputes

Should employers be forced to settle claims that have no merit? - Patrick J. Bannon, Partner , Seyfarth Shaw LLP.

38 Putting Out The Fire: Support Caregivers As Part Of Equitable Workplace Wellness

Five ways employers can support caregivers in their workforce - Neepa Patel, Chief Executive Officer, WellRight

INDEX

Pay transparency law

Copyright For The Digital Age

How california’s precedent-setting will impact employers

Why every employee in your company is breaking the law every day and what can be done about it - Glyn Moody, Editor, Walled Culture

Pay Transparency Law

How California’s precedentsetting will impact U.S. employers - Emily Scace, Legal Editor, XpertHR

By Emily Scace, XpertHR

Optimizing Workforce Reporting While Maintaining Employee Privacy

With the stroke of a pen, Governor Gavin Newsom signed a precedent-setting law that establishes pay transparency and modifies reporting obligations for private employers in California.

Accessing, reporting, and presenting people data securely - Tom McKeown, CEO and Co-Founder, isolved

Under the landmark SB 1162 legislation, California employers with 15 or more employees will be required to include salary ranges in job postings, and all

employers will be required to provide the pay scale for a position upon request to an applicant or current employee.

In addition, the state’s pay data reporting law, implemented in 2021, is amended to expand the employers required to submit data and require

DEI: All Equality Laws Are Not The Same

It’s vital for HR teams to understand how the law stands in their companies’ territories

- Caroline Froger-Michon & Dr. Christopher Jordan, Partners and Co-Heads, Employment & Pensions Group, Gillian MacLellan & Catherine Taylor, Partners, CMS

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Where do you stand in terms of employee safety and health?

Gender-based power dynamics exist in all workplaces, which can serve to suppress the need for protecting employee well-being or safety.

According to a 2018 survey from a nonprofit called Stop Street Harassment, 81 percent of women (and 43 percent of men) had experienced some form of sexual harassment during their lifetime.

In August, actor Sean Bean made headlines when, in the Times of London Sunday Magazine, he said intimacy coordinators “spoil the spontaneity” of intimate scenes. Sean's comments prompted an immediate backlash.

Be it a movie studio or an office environment, workers deserve dignity, respect, and safety — from actors behind the camera to retail workers behind the register to white-collar workers behind a desk.

Check out Pepperdine Graziadio Business School Associate Professor Dana McDaniel Sumpter's Employee Safety And Health Must Be Of Utmost Priority For Organizations to understand how human resources professionals and other managers can undertake to help promote employee wellbeing and safety.

An important concern for any company is to ensure that their employees are not breaking the law in their work. That includes laws that are industry-specific, as well as ones that apply to every company.

Among the latter, a problem that has risen to prominence in recent years is copyright infringement.

In Copyright For The Digital Age, Walled Culture's Glyn Moody touches upon why employees break the law every day and what employers can do about it.

In late September, Governor Gavin Newsom signed a precedent-setting law that establishes pay transparency and modifies reporting obligations for private employers in California.

XpertHR's Emily Scace, in her article Pay Transparency Law, shares her take on this landmark law and what HR should know and do to stay in compliance with the new law.

Also, read Optimizing Workforce Reporting While Maintaining Employee Privacy Tom McKeown from isolved, and DEI: All Equality Laws Are Not the Same by law experts at CMS, among others.

This is not all! This issue of HR Legal & Compliance Excellence also focuses on other legal aspects and highlights that should help you keep your workforce healthy, safe and secured.

Happy Reading!

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Employee Safety And Health Must Be Of Utmost Priority For Organizations

Actors, like employees, deserve to work in a safe and comfortable environment

By Dana McDaniel Sumpter, Pepperdine Graziadio Business School

In August, actor Sean Bean made headlines when, in the Times of London Sunday Magazine, he said intimacy coordinators “spoil the spontaneity” of intimate scenes. Intimacy coordinators, a relatively recent phenomenon, are movie production staff members who ensure the well-being of actors who participate in intimate or emotionally distressing scenes.

“I think the natural way lovers behave would be ruined by someone bringing it right down to a technical exercise,” Bean said. “It would inhibit me more because it’s drawing attention to things.”

Yet Bean’s comments prompted an immediate backlash. Rachel Zegler, the star in the recent West Side Story (WSS) remake, who was notably 17 when she shot intimate scenes with her then

25-year-old co-star Ansel Elogrt, took to Twitter saying “intimacy coordinators establish an environment of safety for actors. I was extremely grateful for the one we had on WSS— they showed grace to a newcomer like myself + educated those around me who’ve had years of experience.”

As Zegler’s statement makes clear, actors — like any other employee — deserve to operate in a safe and comfortable work environment. Be it a movie studio or an office environment, workers deserve dignity, respect, and safety — from actors behind the camera to retail workers behind the register to white-collar workers behind a desk. Claiming that sacrificing worker safety is an acceptable tradeoff to preserve creative “spontaneity” implies that such spontaneity

is more important than the well-being, comfort, and dignity of colleagues.

Such attitudes represent a vestige of years of willing blindness to the need for worker protections and other forms of employee support.

Gender-based power dynamics exist in all workplaces, which can serve to suppress the need for protecting employee well-being or safety. According to a 2018 survey from a nonprofit called Stop Street Harassment, 81 percent of women (and 43 percent of men) had experienced some form of sexual harassment during their lifetime. There are many interventions that human resources professionals and other managers can undertake to help promote employee wellbeing and safety.

First of all, listen. Not understanding the need for such safety protections means that one is not personally familiar with why they are needed. This means that folks making the decisions need to listen to those who are impacted by them.

Amanda Seyfried, an Emmy and Oscar nominee, recently said in Porter magazine that she wishes she had intimacy coordinators when she was a teenager starting her career. Hyper-aware of the gender-based power dynamics she faced, she let herself be uncomfortable on set because she wanted to keep her job — rather than assert her own safety needs.

Second, set, promote, and enforce guidelines on appropriate workplace language. Words spoken in the workplace, as well as outside of it about their employer or employment, matter. In the Times of London Sunday Magazine interview, Bean, more or less, dismisses the #MeToo movement that was ignited in Hollywood. When the interviewer reminded Bean that intimacy coordinators were a response to #MeToo, in an effort to make actresses feel safe on set, Bean responded “I suppose it depends on the actress. This one had a musical cabaret background, so she was up for anything.”

“This one” is Lena Hall, a longtime and respected stage and film actress. Hall also responded on Twitter: “Just because I am in the theater (not cabaret, but I do perform them every once in a while) does not mean that I am up for anything.” This is certainly not isolated to individual preferences or certain industries. The Stop Street Harassment survey found more than three out of four women (77%) have been verbally harassed at work. Mandatory sexual harassment training should also include guidelines on what is and is not an acceptable conversation in or about the workplace.

Third, support employees who express feelings of discomfort. Hall, for example, said she doesn’t always need an intimate partner if she is comfortable with others in the room, but if she ever does feel uncomfortable, she will either challenge the scene or request an intimacy coordinator. Supporting open communication is key to creating a corporate culture in which men and women understand the verbal cues and

physical actions that can lead to uncomfortable moments or even harassment. Even though folks may not want to “rock the boat” with midstream work, it is worth to support those who do speak up and help promote an organizational culture that prioritizes safety and well-being.

Workers everywhere are entitled to a safe workplace. Whether on a movie set, out in a field site,

in a classroom, or in an office environment, HR professionals can’t forget the lessons learned from the #MeToo movement. Listening to disempowered or underrepresented employees is key to nurturing a company culture where everyone has the opportunity to succeed at work –with the necessary support to help keep them safe.

Dana McDaniel Sumpter is an Associate Professor of Organization Theory and Management at Pepperdine Graziadio Business School. Her research employs a cross-cultural lens in studying relational experiences in organizations. Secondarily, she studies work/family systems, women’s career journeys, and inclusion at work. Would you like to comment?

Employee Safety And Health Must Be Of Utmost Priority For Organizations

Monkeypox Offers Employers an Opportunity to Reevaluate LGBTQ Discrimination Protection Policies

Protecting and supporting LGBTQ employees

By Andrew J. Neiman, Fortis Law Partners

Current discrimination against LGBTQ people motivated by monkeypox makes the need for company policies that protect LGBTQ people even more critical. Anti-LGBTQ discrimination in the workplace is already a widespread problem.

A 2021 study by UCLA’s Williams Institute reported that over 45.5% of LGBTQ workers reported experiencing unfair treatment at work, including being fired, not hired, or harassed because of their sexual orientation or gender identity at some point in their lives.

The monkeypox outbreak has been largely pinned on the LGBTQ community by media sources reporting on the topic. Indeed, many gay men have contracted monkeypox. In August 2022, CDC Director Rochelle Walensky stated that gay and bisexual men who are sexually active face the greatest health risk from monkeypox.

Nonetheless, the media attention on monkeypox can lead to misinformation and discrimination, especially when mixed with present-day hysteria around infectious disease outbreaks. In a May 2022 release, the Joint United Nations Programme on HIV/AIDS reported, “some media reporting and commentary was reinforcing homophobic and racist stereotypes.” This can have violent consequences.

For example, two men in Washington D.C. were recently attacked by assailants, who used a homophobic slur and referenced the monkeypox virus. Increases in discrimination following an infectious disease outbreak are unfortunately familiar. A surge of anti-Asian attacks was documented after Donald Trump infamously referred to Covid-19 as the “China Virus” and other news outlets termed it the “Wuhan Virus.”

These incidences underline the importance and necessity of employers adopting policies that protect LGBTQ workers. Of course, such protections are legally required in a lot of instances. Many states have already outlawed workplace discrimination against LGBTQ employees and on June 5, 2020, the US Supreme Court held that Title VII of the Civil Rights Act protects LGBTQ employees from workplace discrimination, because “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”

Failure to adopt policies protecting LGBTQ employees exposes companies to costly lawsuits by private individuals and by the Equal Employment Opportunity Commission. Failing to prevent discrimination also costs employers in terms of talent and retention. Establishing a workplace that celebrates diversity and values inclusion significantly enhances a company’s recruiting appeal.

In sum, monkeypox is likely to cause an increase in anti-LGBTQ sentiment nationwide. Thus, it is urgent that employers reevaluate their policies to ensure that they are doing what is necessary to protect and support LGBTQ employees and applicants.

3. Offer LGBTQ-inclusive benefits, including but not limited to trans-inclusive health-care coverage, domestic partner benefits, and LGBTQ-inclusive family leave and adoption leave policies.

4. Communicate any policy revisions to all employees and use multiple channels (email, hard copy postings, intranet updates, staff meetings, etc.) to ensure all employees are reached.

5. Promptly investigate any reports that employees have been discriminated against because of their sexual orientation or gender identity and take action to end it when it occurs.

How Can Employers Ensure that AntiLGBTQ Discrimination Does Not Occur in Hiring and Recruitment Process?

1. Make explicit mention of the company’s commitment to equality and diversity on the company’s website, job postings, and on recruitment materials. Describe company values or LGBTQ-friendly benefits that demonstrate that commitment.

2. Review application and hiring practices to prevent discrimination from occurring. Discipline those who discriminate against LGBTQ workers and applicants.

Each of the actions listed below are important ways employers can protect LGBTQ employees, promote diversity and inclusion, and minimize liability:

1. Expressly include sexual orientation, gender identity and gender expression as protected characteristics in the company’s policy and procedure manuals, equal-employment-op portunity and anti-harassment policies, and other protocols.

2. Modernize harassment-prevention training with realistic and representative scenarios, including those reflecting LGBTQ issues.

3. Implement policies and procedures that minimize the potential for unconscious bias to inform hiring and promotion decisions. Consider adopting “blind” processes for reviewing applications and resumes (removing identifying information) and use standardized interview questions for all candidates.

4. Recruit outside the company’s usual demographics by partnering with LGBTQ employee networks and organizations, recruiting at LGBTQ recruitment events, and posting job ads on job boards that focus on the LGBTQ community, such as Pink Jobs or the Transgender Job Bank.

What Steps Should Employers Take Now to Protect LGBTQ Employees?

Monkeypox Offers Employers an Opportunity to Reevaluate LGBTQ Discrimination Protection Policies

How to Foster a Workplace Culture that Celebrates Diversity, including LGBTQ People

1. Support LGBTQ organizations through donations and direct involvement. Participate in LGBTQ events, such as pride parades and festivals. These actions demonstrate a commitment to LGBTQ rights and send a clear message to staff and customers that diversity is valued.

2. Include LGBTQ demographics in diversity and inclusion data collected from employees.

It is important to use correct nomenclature when making these improvements. Refer to useful resourc es like the GLAAD Media Reference Guide to ensure that accurate language is used. Using the wrong term can be deeply offensive and undermine the best intentions.

Current hysteria regarding infectious disease outbreaks, including monkeypox, has led to a

media-driven reinforcement of stereotypes and scapegoating. It is therefore important for employers to reevaluate their current policies to guard against workplace discrimination and to champion diversity and inclusion.

Andrew Neiman is Associate Attorney at Fortis Law Partners

Andrew specializes in litigation and advises companies on contractbased issues, commercial disputes, privacy and compliance matters, corporate governance, securities and equity-related disputes, fraud, breach of fiduciary duty, bankruptcy, employment law, marijuana and CBD law. Prior to joining the firm, Andrew served as a Law Clerk at the United States Attorney’s Office (Denver). Would you like to comment?

Monkeypox Offers Employers an Opportunity to Reevaluate LGBTQ Discrimination Protection Policies

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Copyright For The Digital Age

By Glyn Moody, Walled Culture

An important concern for any company is to ensure that their employees are not breaking the law in their work. That includes laws that are indus try-specific, as well as ones that apply to every company. Among

the latter, a problem that has risen to prominence in recent years is copyright infringement.

A few decades ago, it was difficult for employees to infringe on copyright because it was hard for

ordinary people to make copies of physical objects like books. Photocopiers could be used to make copies of a few pages of a book, or of drawings, but they were generally of poor quality, and certainly no substitute for the original.

Why every employee in your company is breaking the law every day and what can be done about it

Today, we live in a world of digital documents, books, photographs, recordings and videos. One of the defining qualities of digital files is that it is easy to produce perfect copies of them for almost no cost, using a computer or a smartphone. Moreover, the rise of the Internet means that most people in Western societies have a quick way to share those digital copies around the world. In many cases, that will represent an infringement of copyright, since the owner of the copyright rarely allows copies to be made and shared freely in this way.

The problem was recognized some time ago. In 2007, John Tehranian, a professor at Southwestern Law School in Los Angeles, calculated that a typical Internet user would be liable

for $4.544 billion in potential damages each year as a result of normal Internet use. If anything, the situation today is far worse. Back in 2007, there was no Instagram or TikTok; Twitter had only just been launched, and even Facebook had fewer than 100 million users. Now, most people online use one or more of these social media services many times every day.

The urge to post online –comments, pictures, videos, songs – is now so reflexive that most people are unaware of it: it is simply part of their everyday lives. Equally, most people do not think about whether they have the legal right to post the material they send to family, friends, colleagues and strangers.

They probably assume that it’s fine because there is no money involved. But the history of digital copyright over the last 30 years shows that companies believe that any unauthorized copying is unacceptable, whether or not it is done for profit.

The ubiquitous culture of digital sharing is a serious problem for companies because it is not restricted to external social networks. The urge to pass on interesting or amusing emails, images, videos, and articles to colleagues over internal company networks is too strong despite strict bans on doing so. The net result is that the potential damages for such actions are probably even higher than the eye-watering $4.544 billion in 2007.

Policing such bans is problematic. Even judges and lawyers find it hard to distinguish between material that can be lawfully shared, perhaps as a matter of fair use, and things that cannot. That means it is even harder to encode those subtleties in algorithms that could be used to keep a watch on the files that employees share. If a company implemented a network filter system to prevent copyright infringement by its employees, the risk is that legitimate material would be blocked, with possibly serious negative consequences for a business’s operation.

Stopping people sharing copyright material is a hopeless task because of the clash between copyright and the Internet. Copyright was devised in 1710 with the Statute of Anne. It was designed for an analog world where copying was hard, and required specialized equipment like a printing press, that was easy

to find and impound. The Internet is, at heart, a digital copying machine. It works by making multiple copies of files and sending them around the globe across interconnected networks. The computers and smartphones that people routinely use to copy files cannot be simply confiscated because modern business – and society – depends upon them.

Faced with that challenge, the copyright world has lobbied for and obtained ever-harsher copyright laws aimed at discouraging people from making unauthorized copies of digital material. The fact that the industry has come back many times for yet more serious deterrents proves that no matter how stringent, the laws against digital sharing simply do not work.

The way to address this problem – and the consequence could be huge if companies ignore the

risk of being sued for the illegal actions of their employees – is to make copyright fit for the digital age. At the very least, that would entail recognizing that everyone, everywhere, is sharing digital material without permission, and adjusting the law accordingly. Ideally, it would involve a complete re-imagining of copyright –perhaps even its abolition.

The resistance from the copyright world would, naturally, be immense. But maybe it is time for the business world to demand saner laws in this area, rather than just carry on turning a blind eye to this massive and pervasive law-breaking committed by every employee, every day.

Glyn Moody has been writing about copyright, digital rights, and the Internet for 30 years. He is the Editor of the Walled Culture project and author of the new book ‘Walled Culture: How Big Content Uses Technology and the Law to Lock Down Culture and Keep Creators Poor’. Would you like to comment?

gig Economy: Ftc ramps up gig Worker Protections

more power to gig workers

By Leonard L. Gordon, Alexandra Megaris, Michael A. Munoz & Joshua Nace, Veneble LLP

The buzz around gig economy protections continues as the Federal Trade Commission (FTC) took yet another action to safeguard gig workers. Last week, the FTC adopted a policy statement asserting its authority to address unfair and deceptive practices and anticompetitive conduct that harms workers in the gig economy.

The statement highlights data from several studies concerning the gig economy, including that it is expected to generate $455 billion in annual sales by 2023, and that 16% of Americans report earning income through an online gig platform. The statement also reports that, while gig work has already established itself in food delivery and transportation, it is now expanding into healthcare, retail, and other segments of the economy. The FTC noted that the decrease in demand for transportation during the Covid-19 pandemic illustrates “the precarious nature of gig work.”

The FTC statement focuses on three features of the gig economy “that implicate the Commission’s consumer protection and competition missions:”

1. control without responsibility

This relates to what many, including the FTC, see as the misclassification of gig workers as independent contractors rather than employees. The FTC states that misclassification:

● Deprives workers of critical rights, like overtime pay, health and safety protections, and the right to organize

● Burdens workers with undue risks, like unstable pay and responsibility for vehicles or other equipment

● Burdens workers with business expenses that the employer should bear, like insurance and gas

2. Diminished bargaining Power

The statement discusses a “power imbalance” that “leave[s] gig workers more exposed to harms from unfair, deceptive, and anticompetitive practices and is likely to amplify such harms when they occur.” According to the FTC, this power imbalance is characterized by:

● Algorithms that dictate workers’ relationship with a gig platform and leave workers with “an invisible, inscrutable boss”

● Little leverage to demand transparency from gig companies

● Commonly used mandatory arbitration clauses and class-action waivers

3. concentrated markets

The statement asserts that many gig platforms exist in

concentrated markets and, therefore, are “more likely to have and exer t market power over gig workers or engage in anticompetitive unilateral or coordinated conduct ” Here, the FTC is concerned that loss of competition in these markets will enable gig platforms to suppress wages, reduce job quality, or impose onerous terms on gig workers.

The FTC plans to “use the full por tfolio of laws it enforces” to protect gig workers from unfair, deceptive, and anticom petitive practices, regardless of how gig companies choose to classify their workers. The FTC’s enforcement priorities listed in the policy statement include:

● Holding gig companies accountable for claims they make to prospective workers about costs and includes claims about potential earnings, lack of clarity regarding how pay is calculated, and undisclosed costs or terms of work.

● Combating unlawful practices and unlawful constraints imposed on

gig workers. The FTC is concerned with the automated or algorithmic control exer ted over gig workers and the lack of transparency that results. Moreover, the FTC views restrictive, “take-it-or-leave-it” contract terms as potentially unfair or deceptive if they unfairly harm workers, render a gig company’s representa tions misleading, or prevent fair competition for workers. The expansion of the FTC’s unfairness authority to cover employment relationships (on both the consumer protection and competition missions) has the potential to vastly expand the FTC’s role in the gig economy and elsewhere.

● Policing unfair methods of competition that harm gig workers. The main concerns coordination, as well as market consolidation and monopolization. The statement highlights the FTC’s intent to investigate non-poaching agreements, and technology-enabled methods of collusion or exclusion. The FTC will also review and, if necessary, challenge mergers that it believes will harm competition for workers.

The commissioners split in adopting the agency’s new policy statement in a 3-2 vote. Republicans Noah Joshua Phillips and Christine S. Wilson dissented,

illustrating the continuing political divide on the commission. At an open meeting, Wilson said the statement was “another step in the effor t to shift the Commission’s attention from its traditional mission of protecting consumers and competition to an agenda focused largely on ‘workers.’ Abandoning the consumer welfare standard, as this Policy Statement purpor ts to do, will harm consumers.”

Earlier this summer, we reported  that the FTC has concentrated its effor ts on protecting gig economy workers, and more recently we   the formation of a new par tnership with the National Labor Relations Board. The FTC protection business.

discussed

Gig Economy: FTC Ramps Up Gig Worker Protections

Leonard L. Gordon and Alexandra Megaris are Par tners, and Michael A. Munoz and Joshua Nace are Associates at Veneble LLP Would you like to comment?

Pay transparency law

How california’s precedent-setting will impact employers

How California’s precedent-setting will impact U.S. employers

By Emily Scace, XpertHR

With the stroke of a pen, Governor Gavin Newsom signed a precedent-setting law that establishes pay transparency and modifies reporting obligations for private employers in California.

Under the landmark SB 1162 legislation, California employers with 15 or more employees will be required to include salary ranges in job postings, and all

employers will be required to provide the pay scale for a position upon request to an applicant or current employee.

In addition, the state’s pay data reporting law, implemented in 2021, is amended to expand the employers required to submit data and require

employers to calculate mean and median pay by race, ethnicity and sex, along with other minor changes.

With the nation’s most populous state joining the list of those requiring pay information in job postings, this transparency in the United States.

What Employers Need to Know

● The legislation, which will take effect in January 2023 is the latest example of a push to improve pay transparency effor ts. New York City, Colorado and Washington also require salary ranges in job postings, and a similar bill is awaiting signature in New York state.

● Employers who fail to comply could face civil lawsuits and state penalties.

● Planning and implementing an approach to transparency may prove challenging for California employers subject to the law— par ticularly if there are existing pay disparities that come to light as a result.

● With more states joining the pay transparency push, practices like disclosing compensation in job postings will become the expectation rather than the exception, and employers who are behind the curve may struggle to attract and retain talent.

● spots when it comes to pay equity. According

to Xper tHR research, while just over 1 in 4 employers believe pay inequity exists in their organizations, over 4 in 5 employers that conducted a pay equity audit had to adjust pay as a result.

What Employers Should Do Now

It’s critical for employers to review their existing pay structure and practices with an eye to identifying and equity strategy in place, transparency is nothing to fear and can even be a selling point.

Emily Scace is the Legal Editor at Xper tHR. Emily has nearly a decade of experience in legal publishing, with exper tise in topics including employment discrimination laws, pay equity, recruiting and hiring, and more.

Would you like to comment?

DEI: The Problem And Solution To Workplace Issues Faced By Talented People Of Color

Addressing and preventing diversity hire syndrome

By Dr. Timothy L. Brown, WorkReduce

The search for Diversity, Equity, and Inclusion professionals catalyzed in the wake of several social injustice driven-events in 2020, igniting conversations on the need for equality not only in the streets but within the workplace.

Thousands of new job postings surfaced overnight as companies searched for DEI professionals (1) to address the existing concerns and future needs of effectively managing a diverse workforce. Many talented People of Color (POC) were identified as the answer to make a difference in the “fight” for and of diversity, equity, and inclusion (2) .

Many POC reported they are expected to be “cultural ambassadors”, who address the

needs of other employees of color, which leaves them doing two jobs: the official job they’re hired to do, and a second job as a champion for members of a person’s affinity group.

What Is Diversity, Equity, and Inclusion (DE&I) in the Workplace?

Diversity, Equity, and Inclusion (DEI) is defined as a company’s effort to provide policies and programs that encourage the engagement of different groups of people, effectively including age, ethnicity, race, gender, religion, culture, and sexual orientation (3) .

The three entities of DEI are often combined into one division of human resources and become an extension of the company’s effort to reach employees.

Unintentional Effects of Diversity, Equity, and Inclusion on People of Color

In June 2020, DEI roles spiked by over 55%, seemly due to the state of the nation and cultural pressure to address inequities within the workplace. DEI specialists introduced DEI trainings on workplace culture and introduced safe spaces for people to share their personal experiences within their current and past work environments.

Policy changes were made to Annual Compliance Models to ensure everyone’s experience was positive. Yet, the effects of this great movement quickly conceded, leaving many talented people of color questioning if a real change would ever come.

Implementing DEI initiatives without properly assessing employee needs creates unintentional effects. Creating safe spaces seems like a positive idea; however, without restraint, this can leave individuals feeling exposed and exploited for sharing their experiences. Some employees reported companies singled out Talented People of Color to lead the charge for DEI adding insult to injury (4)

These employees were tasked with dual tasks to complete their job and lead infinity groups of which they are neither compensated nor properly trained to conduct. The additional pressure to be twice as good, outperform colleagues, participate in minority advancement char acteristic-based programs not required for peer promotion, and limited opportunity for advancement are all common issues experienced by talented People of Color.

While companies may recognize the voice of their employees is valuable, many neglect the voice of those most affected.

Unfortunately, many DEI programs lacked substance when mitigating the underlying issues of Diversity, Equity, and Inclusion in the workplace.

DIVERSTY. When Intention Is Clear, So Is the Way

Diversity is essential to the growth of any company. However, intention is often neglected when

developing a DEI strategy. One author writes, “when intention is clear, so is the way”. Companies have the responsibility to be responsible to their employees. Clear intentions set the foundation for growth.

Identifying why diversity is important and how diversity will enable growth seems simple, however, neglecting the foundational work of building on clear intentions often cause unintentional cultural imbalance. If you’ve ever experienced a culture imbalance in the workplace, you know exactly what I mean here. The culture imbalance is felt throughout the company and can appear in the form of “diversity hire syndrome”, more commonly defined as the hiring of a POC to fill a diversity quota.

Believe me, if this happens in your company, employees will know it and it will not be long before the company experiences the negative effects of this decision.

When building a structure for the DEI strategy, clear intentions are imperative. Keep away from bias and set to meet the needs of current employees, thus lead the way for the inclusion of others. Incorporating diversity in your company’s mission, vision, and value ensures the principle is woven into the cultural fabric of your organization. Sharing information on the organization’s intent and direction creates a more natural approach to change; ultimately creating space for the change to come.

EQUITY or EQUALITY. Balancing the Scale

If pay inequity exists, why don’t companies do more to fix it?

One study found that Men of Color were 25% less likely than a Caucasian male to receive a raise when they ask (5). The pay gap for Women of Color is exponentially wider than that of Men of Color. Balancing the pay scale inequities is a must to ease the tension of equity. The hope that DEI Initiatives address inequities often falls short when companies fail to address bias in pay scale increases and performance reviews.

Companies can do more to standardize the performance review process. Encourage employees to conduct peer-to-peer evaluations. Build on this empowerment tool and offer 360° evaluations for transparency in communications. Self-evalu ations are also a great way for employees to share their greatest accomplishments, challenges, and ideas to improve in the next quarter.

Get creative with the intentionality to incorporate your employee’s voice. Once this information is gathered, listen and respond in a timely manner. There’s nothing worst for trust development than a late response to an urgent request or matter. Even if the answer is not now or no, employees respect the company’s effort to listen and respond to their ideas and concerns.

DEI: The Problem And Solution To Workplace Issues Faced By Talented People Of Color

Pay can be tricky as your company works towards a more equitable portfolio for all employees.

Depending on where you fall in this spectrum, it never hurts to consult a pay scale professional and complete at least an annual market evaluation. Work to build pay increases equitably by basing salary increases on overall performance.

Communicate any changes to pay and salary increases with employees well in advance.

Transparency throughout each process is vital to building trust. Encourage collaboration with the leadership team and internal communications to align messaging to your employees.

Prepare and empower leaders with knowledge on how to answer questions and/or develop an FAQ sheet, as your company moves towards a more equitable organization. One of the biggest

issues with change often comes from the lack of communication throughout the change process. Share updates consistently and do not fear over communication. Address the gap in equity, and equality within the workplace will follow.

INCLUSION: My Seat at the Table

Underrepresentation at all levels of leadership is a direct result of the lack of inclusion within a company. People of Color employed in the United States experience the effects of under representation most directly when it comes to the ability for promotion. A Human Resources study conducted by Mercer found that though 64% of corporate workers in entry-level roles are Caucasian, Caucasian individuals represent 85% of corporate executive roles (6). If that statistic is not startling enough, as of 2021,

only four Fortune 500 companies reported having a Black CEO (7)

Representation at all levels of leadership is important for the growth and development of all employees. Inclusion should be a founding principle of the company’s recruitment strategy and be built around the company’s mission, vision, and values. Without inclusion, companies may lead to a common experience known as the Diversity Hire Syndrome. The Diversity Hire Syndrome, also known as a “Diversity Hire,” happens when a company hires a person of color not for their skills, ability, and experience, but as a token representative of a marginalized group of employees. These individuals almost always never provide positive change for the underrepresented group and lead to additional issues with trust within the company.

DEI: The Problem And Solution To Workplace Issues Faced By Talented People Of Color

Preventing Diversity Hire Syndrome is possible by building a clear intentional strategy for diversity within your company. This includes following the steps of implementing change with clear intentions, providing consistent communication to leaders and employees, and incorporating the voice of your employees in the strategy to move forward.

Moving Forward Together

Building a strategy to move forward together is exactly what companies can do to create a successful DEI Program. Begin with an assessment of the current layout of the company. Clearly identify any blind spots and be honest about what can be better and what areas to focus on first.

Ask employees their perspectives on how to move forward and follow up with any decisions made based on their suggestions. Conduct an annual demographic survey to understand your organization’s demographic profile. Depending on the industry, compare your overall profile with industry statistics to see

how you measure. Complete the same steps for your pay scale to get a greater understanding of your company’s strengths, weaknesses, threats, and opportunities.

References

Maurer, Roy (2020). New de&I roles spike after racial justice protests. SHRM. https:// www.shrm.org/resourcesandtools/ hr-topics/talent-acquisition/pages/new-deiroles-spike-after-racial-justice-protests.aspx

Estrada, S. (2021). Black professionals report pressure to change behavior, appearance at work. Dive Brief. https:// www.hrdive.com/news/black-profession als-report-pressure-to-change-behavior-ap pearance-at-work/595764/

Rosencrance, Linda (ND). Diversity, equity and inclusion (dei). Tech Target. https://www.techtarget. com/searchhrsoftware/definition/ diversity-equity-and-inclusion-DEI#:~: text=Diversity%2C%20equity%20and%20 inclusion%20(DEI)%20is%20a%20term%20 used,religions%2C%20cultures%20 and%20sexual%20orientations

Boskamp, Elsie (2022). 60+ incredible diversity in the workplace statistics

[2022]: facts you need to know. Zippia. https://www.zippia.com/advice/ diversity-in-the-workplace-statistics/

Morgan Roberts, Laura & Mayo, Anthony. (2019). Towards a racially just workplace. Harvard Business Review. https://hbr.org/2019/11/ toward-a-racially-just-workplace

Bunn, Curtis (2019). Black in corporate American still largely invisible, study finds. NBC News. https:// www.nbcnews.com/news/nbcblk/ blacks-corporate-america-still-largely-invisi ble-study-finds-n1098981

Korn Ferry. (2021). Diversity, equity &inclusion: real progress or just for show? https://www.kornferry.com/insights/ featured-topics/diversity-equity-inclusion/ global-dei-pulse-survey

Reiners, B. (2021). 57 Diversity in the workplace statistics you should know. https://builtin.com/diversity-inclusion/ diversity-in-the-workplace-statistics

Gruver, Jackson (2019). Racial wage gap for men. Payscale. https://www. payscale.com/research-and-insights/ racial-wage-gap-for-men/

Dr. Timothy L. Brown is the Director, People and Culture, for WorkReduce. He holds over 11 years of experience in human resources operations. His strategic skillset continues to enhance the overall experience of thousands of employees throughout the industry. Most recently, he led the Employee Experience efforts for Cape Fear Valley Health which focused on building a culture of engagement. Timothy is also known for building the employee Health Coaching Program at Atrium Health – which in 2017, led to a $17.3 million cost savings through his development of a modifiable health behaviors program for their 70,000-employee population.

Would you like to comment?

DEI: The Problem And Solution To Workplace Issues Faced By Talented People Of Color

Optimizing Workforce Reporting While Maintaining Employee Privacy

Accessing, reporting, and presenting people data securely

By Tom McKeown, isolved

Workforce reporting is essential to any business looking to succeed. However, when working with people data, leaders must balance the value of analysis against the data privacy of their employees.

An accidental revealing of personal data by an organization can be as detrimental to an employer and employee as a cyber-attack. Take as an example when in early 2022 the City of Boston accidentally communicated the identities of workers. who tested positive for Covid-19.

Personally identifiable information (PII) is the most delicate with regard to workforce reporting. These data points can identify any individual directly or when combined with other information.

Direct personal identifiers, such as social security numbers, driver’s license, or employee identification numbers, are rarely used in any type of business analysis because they carry neither performance nor segmentation value, but there are other germane organizational data points when combined can be both identifying and exposing.

Forty-nine of the fifty U.S. States have pay equity laws prohibiting employers from discriminating against workers based on gender, ethnicity, age and other designations. This makes it important to be able to run reports that compare compensation across and between such groups.

However, too many segments and filters pose the risk of exposing individual identities. If there is only one African American female accountant in the Boston office, a report drilling down to this level should not be shown too widely.

Assuring that PII or any other sensitive employee information does not get revealed when producing workforce reports should be a priority for any organization. Below are some recommended guidelines that can help ensure that internal people’s information is accessed, reported, and presented properly.

1. Set Up Secure User Access to Data and Reports Based on Managerial Levels and Responsibilities

Three levels of user security should be considered. The

first level is for administrators or super-users. These types of users are individuals, who have a need to see data for everyone, everywhere. Individuals who fit this profile are usually C-Level or senior leaders within

the organization and certain key individuals in the human resources (HR) department. Administrator or super-user privileges are usually the least difficult to set up in a system as they have no restrictions.

The next level that requires access, but of a more limited type, is line managers. This group usually needs to see all or most people’s information, but only for employees in their span of control or reporting structure. This can be accomplished using hierarchical security, which secures access to employee data for every manager from their level downwards in the organizational structure. This type of security is available in most systems that connect employees to managers.

The third level of secure access is more of an ad hoc collection of individuals who might need access to certain segments of the population for oversight or administrative purposes. A good example would be an HR business partner who might be assigned to a certain division or location. This person would need access to the people data of that limited group despite having no managerial authority or responsibilities. Some systems provide this level of security by allowing configurable user profiles to be set up.

2. Define What Data Points Are and Are Not Necessary for Each User to Access

After it is established who can see and report on which employees, the next step is to decide if any information is off limits and to whom. The abovementioned HR business partner may need access to reports in a certain region or division, but might need to be precluded from seeing certain fields, such as compensation or performance. Being able to filter out certain

fields from reporting access can also allow administrative personnel to run reports for senior executives without seeing what may be deemed sensitive information.

3. Control How Data Is Presented

The main consideration when presenting workforce data is to remember that it should be aggregated. When audience is a large group, such as an employee meeting or a public entity, there should absolutely be no links to any employee-level information. All metrics and analytics should be presented in graphical formats with the labels displayed in percentages rather than employee counts. Also, it is best to cluster smaller segments under a certain percentage as small percentages may also divulge individual identities. Using designations, such as other or multiple, are common for such purposes.

Optimizing Workforce Reporting While Maintaining Employee Privacy

4. Anonymize Records if Employee-level Detail Reporting Is Necessary

For the rare instances, where individual-level of data needs to be revealed, or where you fear that it will accidentally be revealed, some organizations choose to anonymize their entire employee data set before running certain reports or analyses. Examples of such instances would be in the collecting of survey information

on employee culture and happiness or information on why someone left the company. Any recorded information regarding complaints of harassment or discrimination should be kept anonymous but analyzed to see if certain patterns emerge that need to be addressed.

Safeguarding employee privacy and providing people analysis for business success should not be conflicting goals. Do not let all the positive steps being

taken to improve culture and engagement get wrecked by careless reporting. By using some simple steps, organizations can ensure that people’s data does not get exposed while continuing to do the proper reporting and analysis necessary for growth and profitability.

Tom McKeown is the former CEO and Co-Founder of TrenData HR that was acquired by isolved. He is now a Product Owner for Predictive People Analytics, intelligently connecting the full isolved People Cloud platform. Tom is a senior executive with over 25 years of experience in bringing innovative software to market. Would you like to comment?

Why Good Companies Want Arbitration—But Not Mass Arbitration—Of Employment Disputes

By Patrick J. Bannon, Seyfarth Shaw LLP

For at least 30 years, the battle over arbitration of employment disputes has followed a familiar pattern: businesses push for the right to enforce arbitration agreements and the plaintiffs’ bar resists. In recent years, however, some plaintiff-side law firms have flipped the script. They have enlisted thousands of individuals to file individual arbitration demands against their employers. Facing millions of dollars in arbitration filing fees, the companies have scrambled to try to escape from or block arbitration.

Some observers see poetic justice. In denying one company’s request to enjoin thousands of individual arbitrations, United States District Court Judge William Alsup, summarized this point of view:

“For decades, the employer-side bar and their employer clients have forced arbitration clauses upon workers, thus taking away their right to go to court, and forced class-action waivers upon them too, thus taking away their ability to join collectively to vindicate common rights. The employer-side bar has succeeded in the United States Supreme Court to sustain such provisions. The irony, in this case, is

that the workers wish to enforce the very provisions forced on them by seeking, even if by the thousands, individual arbitrations, the remnant of procedural rights left to them. The employer here, . . . , faced with having to actually honor its side of the bargain, now blanches at the cost of the filing fees it agreed to pay in the arbitration clause. {} This hypocrisy will not be blessed, at least by this order.”1

Should employers be forced to settle claims that have no merit?

This Legal Backgrounder argues that the charge of hypocrisy is unfair, at least to many “Good Employers.”2 We contend that many Good Employers are motivated by the same reasonable principle when they enforce arbitration agreements as when they try to avoid mass arbitration: they don’t want to have to settle employee claims that have no merit.

In litigation, Good Employers often face economic pressure to settle even the weakest cases, especially when asserted as a class action or collective action. In most class actions and collective actions, the court won’t consider whether a named plaintiff’s claim has merit until after the court has decided whether to certify the case as a class action or “conditionally certify” the case as a collective action. But deciding whether to certify a class action is expensive and invasive. It can involve production of documents in discovery, production of information about the members of the would-be class and depositions of company executives and of current company employees. The problem for an employer is even worse in the context of would-be collective actions. As we have noted elsewhere,3 many judges apply a strikingly lenient test and almost routinely “conditionally certify” collective actions. The employer then must facilitate notice to their employees (usually via a document that looks to most employees as if it’s coming from a court) that an employee has sued the company for violating the law and that the employees might want to consider joining the suit.

All this litigation routinely happens before any consideration of the merits. In practice, a Good Employer facing a meritless claim that is asserted as a class or collective action has only two choices. Defending the case often means paying six-figure (at least) legal bills and distracting employees, managers, and executives from the goals of the organization. The alternative is to settle. Settlement is rarely appealing, but when a plaintiff’s claim is probably without merit, it is especially distasteful.4

The scenario described above is not only possible. It is common. In federal court alone, several thousand

would-be collective actions are filed each year,5 and many employee class actions are filed in federal and state courts as well. Of course, some of these claims undoubtedly had merit. But others did not and one way or the other the defendants had to pay a high price to resolve the meritless claims.

Given what litigation often entails, it is no surprise that many Good Employers seek to require arbitration of their employment disputes. Following the Supreme Court’s Concepcion and Epic decisions, an arbitration agreement can and almost always does provide that the parties will resolve claims through individual arbitration, with no class actions or collective actions allowed. The cost of defending a baseless claim in individual arbitration is often only a small fraction of the cost of defending a class or collective action. The pressure to settle an unwarranted claim is greatly diminished. That’s an important reason—perhaps the most important reason—why many Good Employers require their employees to agree to resolve disputes through arbitration.

The plaintiffs’ bar sometimes portrays arbitration agreements as liability-avoidance schemes, imposed by employers who want to violate employment laws with impunity. If employees must arbitrate claims on an individual basis, plaintiffs’ lawyers argue, many employees won’t bother asserting low-value claims while others will be too afraid of retaliation to become claimants. But this argument can’t explain the tens of thousands of individuals who file individual lawsuits and individual complaints of discrimination with the EEOC and state anti-discrimination agencies every year.6

Are there employers that see the risks of these individual claims and government-agency investigations as so low that, if they are allowed to enforce arbitration agreements, they won’t worry about employment laws? We’re skeptical. But our point in this article is that many Good Employers want arbitration, not to immunize themselves when they are in the wrong, but to avoid having to settle even when they are in the right.

The Good Employer’s aversion to mass arbitration arises from the same motive. Mass arbitration can also force an employer to settle claims that have no merit. Here’s how mass arbitration often plays out from an employer’s point of view.

A company receives a letter from a plaintiffs’ firm stating that the firm represents hundreds or thousands of the company’s current and former employees, and that each of the employees has already filed or intends to file soon an individual arbitration demand alleging violation of some employment law. The letter invites the company to discuss the settlement of the claims. The alleged violation could be allowing the employees to perform work off the clock. Or it could be treating allegedly overtime-eligible employees as overtime exempt. Or it could be treating alleged employees as independent contractors.

The alleged violation is to some extent beside the point. Regardless of the nature of the allegations— and regardless of whether the allegations have any merit—the hundreds or thousands of individual arbitration demands will cost the company hundreds of thousands or millions in upfront arbitration filing fees. And, not long after the filing fees, the company will often owe millions more in arbitrator compensation. The filing fees and probably at least some of the arbitrator compensation usually must be paid before the employer has any opportunity to challenge the merits of the demands. The Good Employer is again face-to-face with the problem that arbitration was supposed to help solve: overwhelming economic pressure to settle even if the Good Employer can prove that the claims have no merit.

Are Good Employers common or rare? Is it possible to enlist large numbers of employees to assert claims of dubious merit if the employees think the claims will net them thousands of dollars? Business advocates and worker advocates may disagree about these questions. But all sides ought to be able to agree that both class actions and mass arbitration have the potential to force an employer to settle claims that have no merit. A company that tries to avoid both procedures may be a Good Employer—not a hypocrite.

Notes

1. Abernathy v. Doordash, Inc., 438 F. Supp. 3d 1062, 1067 (N.D. Cal. 2020). We don’t express any view in this article on the Abernathy case specifically.

2. A Good Employer is a company that tries to comply with its legal obligations toward its employees. Some readers may deny that Good Employers exist or doubt that employees sometimes assert baseless claims. We recognize that this article won’t persuade those readers.

3. See Patrick Bannon, Anthony Califano & Michael Steinberg, 3 Ways Courts Should Improve FLSA Collective Actions, Law360 (Feb. 1, 2021).

4. Judges and commentators have noted that “{w}hen the potential liability created by a lawsuit is very great, even though the probability that the plaintiff will succeed in establishing liability is slight, the defendant will be under pressure to settle rather than to bet the company, even if the betting odds are good.” Kohen v. Pac. Inv. Mgmt. Co. LLC & PIMCO Funds, 571 F.3d 672, 678 (7th Cir. 2009). Here, we’re making a slightly different point: an employer named in a class or collective action often can’t avoid substantial costs, even if the employer is certain to prevail on the merits.

5. For example, according to a Lex Machina search, 2,754 collective actions under the Fair Labor Standards Act were filed in federal court in 2021.

6. In 2020, for example, the EEOC alone received more than 67,000 charges. See https://www.eeoc.gov/statistics/ charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020

This article first appeared here

Patrick J. Bannon is a Partner in the Boston, MA office of Seyfarth Shaw LLP. Would you like to comment?

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DEI: All Equality Laws Are Not The Same

By Caroline Froger-Michon, Dr. Christopher Jordan, Gillian MacLellan & Catherine Taylor, CMS

As an HR professional, diversity, equity & inclusion (DEI) has become a growing consideration in your day-to-day work. As HR.com reported last year in The Future of Diversity, Equity and Inclusion 2021, two-thirds of companies surveyed say that DEI plays a role in their strategic planning. Another 57% integrate DEI frameworks into their business strategy.

The benefits of supporting a diverse and inclusive workforce are increasingly becoming apparent –not only in terms of workforce satisfaction (and therefore recruitment and retention) but also in business performance. A 2020 study by McKinsey & Co covering 1,000 companies across 15 countries reported that companies in the top quartile for gender diversity on executive teams were 25% more likely to have above-average profitability than companies in the fourth quartile.1

Another 2021 report found that firms that are diverse in terms of age, gender and geography make better decisions than all-male teams 87% of the time.2

Plus, of course, DEI is becoming an increasingly prominent sustainability metric on which companies are measured by investors as part of their environmental, social and governance (ESG) analysis.

1 How diversity, equity, and inclusion (DE&I) matter | McKinsey

2 Free Diversity And Inclusion White Paper: Hacking Diversity With Inclusive Decision Making From Cloverpop

In particular, poor DEI practices are increasingly seen to carry high reputational risks.

Comparing Diversity Laws Across Territories

DEI is a critical consideration for HR teams in support of their company’s legal compliance. However, although DEI seems to have risen up the corporate agenda worldwide – countries are still at vastly different stages of their diversity journey. As a result, the legal implications of a company’s DEI practices (or lack of them) still vary hugely from one territory to another.

For businesses operating across multiple jurisdictions, it is essential to understand how discrimination laws and DEI practices may differ depending on the location.

Know What’s a Legal Requirement and What’s Best Practice

Every jurisdiction has labor laws that outlaw discrimination against workers to a greater or lesser extent. But in most countries, there are few prescribed steps employers are legally required to take to prevent discrimination in the workplace (outside of certain measures, such as gender gap reporting or employee quotas – see below).

It’s vital for HR teams to understand how the law stands in their companies’ territories

DEI: All Equality Laws Are Not The Same

Instead, the onus is on the employer to show that their actions are sufficient. In the UK, for example, an employer will not normally be held liable for any discriminatory acts of its employees if it can demonstrate that it took “all reasonable steps” to prevent discrimination or harassment.

This entails – as in many countries – having a DEI policy that is communicated to all staff and reinforced through regular training. But in most countries a DEI policy is still only recommended as best practice (albeit something that stakeholders expect to see in a company as a matter of course)- Mexico is one of the few jurisdictions, where it is actually a legal requirement.

Where legal measures – such as quotas or gender pay gap reporting – are imposed, they may only apply to certain types of companies. In many countries in Western Europe, for example, only listed companies and /or other large companies are legally obliged to report on their diversity statistics.

Understand What and Who Is Protected

Countries can differ in terms of what characteristics are legally protected against discrimination, even in what might be viewed as a fairly homogenous region. Take Europe, for example. Member countries of the European Union typically protect around 13 different characteristics, ranging from gender and ethnicity to physical disability and trade union membership. In the UK, there are nine specified protected characteristics. In the principality of Monaco, only gender and state of health are protected.

Who is protected can also vary. While many territories seek to protect all types of employment relationships (employees, contracted/temporary workers and platform workers), some countries (e.g. the Labor Law in Croatia or the Labor Harassment Law in Colombia) only protect those classed as employees.

To keep things simple (and indeed equitable), some firms look to define a universal DEI policy, seeking to acknowledge and protect the same character istics across all their territories. This means using

the market with the most stringent and extensive discrimination laws as the blueprint for all markets.

Know the Laws on Diversity Data

The introduction of the EU’s General Data Protection Regulation (GDPR) laws in 2018 has had an impact in many areas of the HR remit – and DEI is no exception. Specifically, most diversity data, (such as data on racial or ethnic origin, sexual orientation, religious beliefs and disability or health) qualify as ‘special category’ data, which means stricter rules must be followed.

Any employer seeking to collect and process such data for the purpose of DEI initiatives, therefore, needs to comply with the exemptions set out in the regulation – such as obtaining explicit consent from individuals to use their data. To comply with GDPR, the company must advise the individuals of the purpose and length of time for which the data may be used –and also have processes in place to ensure data is isolated and deleted within the consented timeframe.

Countries outside of the GDPR’s remit can have less onerous data requirements. But it is important to be aware that parts of the GDPR have become a model for personal data law in other countries, including Turkey, Peru and Singapore (and, of course, the UK, which introduced the UK-GDPR in January 2020 to coincide with its departure from the EU). Additionally, GDPR can still apply to companies outside the EU that use personal information on behalf of an EU-based organization and have EU-based customers.

Get to Know Quota Rules or Recommendations

One area of the DEI landscape that directly involves HR teams is employee quotas – notably to encourage gender parity at the management and board levels.

Currently, Europe has very disparate rules or recom mendations on gender quotas. However, a new EU directive is set to require listed companies to grant women at least 40% of non-executive seats on their boards, or at least 33% of executive and non-executive seats, by mid-2026.

In the UK, certain publicly listed companies must include a statement in their annual financial report setting out whether they have met certain board diversity targets on a ‘comply or explain’ basis. These targets include having at least 40% female board members and one board member from a minority background.

The Netherlands introduced legislation earlier this year for listed companies, including a statutory obligation to appoint at least 30% women, which goes so far that if companies fail to do so and appoint a man, this appointment is invalid and void. The legislation also holds obligations for so-called large companies.

Outside of the EU and the UK, gender quotas vary hugely – from no quotas in Mexico, Monaco and Ukraine to only applying to public entities in Peru. Some countries are also focused on supporting inclusion in other ways: Croatia, Chile, Peru and Slovenia all require or incentivize companies above

a certain size to ensure a certain percentage of their workforces comprise disabled personnel, for example.

Staying Ahead

DEI is an area that is seeing constant movement as the debate evolves as to how business and the workplace should reflect the societies we live in today. As a result, a growing range of topics are being added to the diversity discussion, including the rights of trans and non-binary employees, menopause and the need to protect social mobility.

Worldwide, there is a growing interest among companies to address DEI – whether in response to heightened scrutiny from investors, customers and the media, or to make their corporate culture more attractive to potential recruits. Greater development of DEI regulation by the EU is expected to have a major impact on national legislation, especially in markets, such as Hungary and Slovenia, where the topic is still seen to be in its infancy.

As awareness of the importance of DEI increases, there are signs that discrimination cases are on the rise. The UK Employment Tribunal reported almost 11,000 more discrimination claims in 2020/21 than in the previous year, for example. Plus discrimination claims made up 29% of its total claims compared to 23% the year before.3

HR teams, therefore, play a key role in ensuring their organizations have adequate procedures and policies in place to demonstrate that all workers are supported and protected in line with current rules and codes of practice.

Caroline Froger-Michon and Dr. Christopher Jordan are Partners and Co-Heads of the Employment & Pensions Group, in CMS Paris and CMS Cologne respectively. And, Gillian MacLellan and Catherine Taylor are Partners at CMS Glasgow and CMS London respectively.

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3 UK Employment Tribunal – 2020/21 annual statistics

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Putting Out The Fire: Support Caregivers As Part Of Equitable Workplace Wellness

Five ways employers can support caregivers in their workforce

By Neepa Patel, WellRight

Employees are more stressed out than ever.

The American Psychological Association reported that 79%

of surveyed workers experienced work-related stress in the last month and pointed to pandemic-related stressors, such as long hours working from

home, unreliable return-to-work procedures, and the politicization of masks, as driving factors.

But there’s a subpopulation of employees experiencing an extra level of burnout that many organizations are overlooking: caregivers

About 1 in 5 Americans are serving as unpaid caregivers for a loved one, according to a 2020 report from AARP, and 61% of those caregivers were also employed in some capacity. That number is set to rise as the baby boomer generation ages and “sandwich generation” caregivers begin caring for their parents as well as their children.

However, their employers may not know it — about 1 in 3 employed caregivers reported that their supervisors didn’t know about their situation.

Employers need to account for caregivers when considering building an equitable workplace wellness program — one that is built so everyone, regardless of their lived experiences, has an equal opportunity to achieve and maintain well-being.

How Caregiver Burnout Impacts Organizations

Symptoms of burnout, be it workplace-related or caregiving-re lated, permeate outside of the office and home. The first burnout sign an employer may notice is increasing use of sick days or leaving early. Burnout among caregivers can also show itself as withdrawing from loved ones, fatigue, irritability, or increased use of substances.

Just as burnout affects every area of an employee’s life, it affects

every area of a business as well. Allowing caregivers to reach the point of burnout can be costly on a number of fronts.

According to the AARP survey, 23% of caregivers say their health has worsened since they started looking after their loved ones, which results in increased healthcare spending.

Caregiver burnout also affects retention efforts, with some leaving the workforce entirely (6%) or retiring early (5%). And even if they stay employed, burnout affects productivity. Over half of employed caregivers say they go in late, leave early, or take time off, and 14% have taken a leave of absence from work as a result of caregiving responsibilities.

Putting Out The Fire: Support Caregivers As Part Of Equitable Workplace Wellness

Recognizing who serves as a caregiver and offering support before burnout emerges, is a win-win.

How Employers Can Support Caregivers in Their Workforce

Giving employees the resources and opportunities they need to achieve optimal outcomes is the basis of an equitable wellness program. And that includes caring for caregivers.

According to the AARP survey, a dismal 26% of caregivers say their employers offer special programs geared directly toward caregivers (such as specific information, referrals or an employee assistance program), leaving a large subgroup of employees unsupported.

It’s time to change that. Here are five ways employers can support caregivers in their workforce.

1. Develop a culture of listening. Supervisors are an important early detection system for burnout. Encourage open communication among managers and their teams. This helps employees feel heard, and it can also reveal if someone is serving as a caregiver. That way, managers can flag that employee for potential extra help before burnout sets in.

2. Offer broad paid leave options. While the United States is the only higher-income nation that doesn’t guarantee paid family leave, some employers have stepped in. 55% of employers offer paid maternity

leave, but just 35% offer paid extended family care leave. Paid family leave is an important part of a holistic benefits package. Employers should offer broad eligibility for paid leave programs so caregivers and others can stave off burnout and remain in the workforce.

3. Ask employees what they want. No one knows better what will be helpful than the person receiving the help. Direct employee surveys can reveal weak points in support programs that organizations may not have known they had. Then, they can act on the results.

4. Make a dedicated employee resource group. Many organizations create employee resource groups (ERGs) as part of their diversity, equity, and inclusion programs, so underrepresented employees have a safe space to come together. There may be an appetite at your organization for a caregiver-specific ERG.

5. Promote the importance of self-care. Corporate workplace wellness programs can offer a variety of resources that can help prevent burnout, like guided meditations, movement challenges for physical health, or training on Medicare and Medicaid rules for caregivers. Give employees access to those resources via a well-being platform and continuously promote it, so employees feel comfortable accessing and using them as needed.

Stress is on the rise among employees at organizations across the country, but those who are also caregivers at home need extra support to avoid burning out. Supporting those who care for others is a key component of an equitable, holistic workplace wellness program.

Neepa Patel is the Chief Executive Officer at WellRight and joined the team in 2021. With over 25 years of experience in health care strategy and business development, Neepa has previously held executive positions at the BCBS Association, AIM Specialty Management, Evolent Health and IPG during periods of high growth and rapid change. With a strong understanding of both the challenges and opportunities facing the wellness industry, Neepa is uniquely skilled to lead WellRight's next phase of growth

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Putting Out The Fire: Support Caregivers As Part Of Equitable Workplace Wellness

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