Care is in Order in HR

In the corporate world, human resources is often the ugly stepsister. It's a department that spends money rather than making it, always has someone annoyed at it and is rarely viewed as an asset to the company. You may choose to disagree with those assertions, but that's not what this piece is about.

Just the other day, I wrote about being clear in your documents. Today, I move along the spectrum from clarity to care.

My motivation for writing this is a Supreme Court case fashioned as Yates v United States. It's not a case that relates to human resources. It's not a case that relates to anything that most HR departments ever even think about.

It's about fishing. Yes, you read that right. Mr. Yates is a commercial fisherman. And, in that role, Mr. Yates has some people who work for him. Mr. Yates and his workers were caught with undersized grouper and were ordered to leave them in the boat as evidence. Mr. Yates ordered his men to throw the grouper back in the water and they did. Mr. Yates was charged with a crime.

Of course he was, you might think. He and his workers were violating federal law by catching undersized grouper.

Hold on. That's not what he was charged with violating. Mr. Yates was charged with violating the Sarbanes-Oxley Act (SOX or SarbOx). You remember SOX. It was passed in 2002 to help the federal government to combat underhanded business practices such as those that were found at Enron. But, in this case, Mr. Yates was accused of the destruction of "any record, document, or tangible object" for the purpose of obstructing a federal investigation. Had he been found guilty and lost his appeal(s), he could have had to serve 20 years in a federal penitentiary.

Okay, so you just know that I am going to tell you that SCOTUS voted 9-0 to throw this case out. Wrong. The vote was 5-4 with Justice Kagan joining the utlra-conservative wing of the Court on the side that felt that Mr. Yates should, in fact, suffer the consequences of SarbOx). (By the way, you should all consider reading Kagan's dissent as it is the first one that I have seen that references Dr. Seuss.)

So, what's my point?

We all need to take care. Congress especially should take care, It is often their loose wording of the bills that they pass that causes this sort of unintended consequence.

But, perhaps more than other corporate functions, HR needs to take care. HR and its programs tends to be subject to lots of laws that either were never intended for HR or had a small component that was that was embedded in a much larger law. When the latter occurs, that benefits or compensation or workplace practice component tends to be drafted very quickly by people who may not have particular experience in that area.

Nobody can keep up with all of this stuff. But, plaintiff's bar seems to look for unusual wording in statute that can be applied in ways that would appear to have never been intended by the drafters.

So, I give a word (several actually) to the wise. No matter how sound your practices appear to be, it may wise to consider how they could be twisted and misconstrued to violate something. Can someone argue discrimination on the basis of age, gender, race, ethnicity, religion, sexual orientation, or anything else because of your well-intentioned policies? As strange as it seems, the prudent approach may be to work backwards. Start by assuming that your policies violate everything possible and work backwards to prove that they don't.

And don't forget to read about the application of One Fish, Two Fish, Red Fish, Blue Fish to Sarbanes-Oxley.

Preparing to be Competitive

Think back 30 or 35 years, or more if you like. To steal a term from Thomas Friedman, the world wasn't so flat then. There weren't as many global companies. The internet was thought to be a pipe dream of some MIT researchers. E-mail didn't exist for most of us. Fax machines existed, but most of us had never seen one. In short, we lived in a different world with a different economy.

The employment deal -- the written or unwritten agreements between employer and employee -- was very different as well. The concept of employees paying for benefits with pre-tax dollars was just coming into existence. As a result, most benefits were provided by the employer. Of course, there were fewer benefits, but many would argue that the ones we had were better.

In a fairly typical situation where an employee was starting a job with a large employer, here were some of the key components of the deal:

• base pay
• maybe a bonus, but base was certainly king
• a pension plan designed so that the employee would spend his career with that company and have the opportunity to take normal retirement at age 65 or perhaps an earlier retirement as early as age 55
• health care benefits for the employee and his family, paid by the employer
• office visits
• hospital care
• major medical
• vacation time
• sick time
• retiree medical benefits similar to those for active employees so that employees who retired early could live their retirements fairly worry-free

The world changed. Companies started to provide more and different benefits. They also started to charge employees for those benefits. And, in fact, the rate of increase in the employee cost of those benefits often increased far more rapidly than their pay. Companies began to understand the long-term commitment and cost of retiree medical plans. They started to go away. Similarly with pension plans, companies found that employees all wanted their 401(k) plans, but many of them just didn't get their pension plans.

And, the world continued to change. The newer age employee wanted different benefits. And, other companies provided for a far different deal. Take the auto industry, for example. When I was a kid, if your parents bought a car, they bought from GM, Ford, Chrysler, or American Motors, or maybe one of those funny looking Volkswagen Beetles. For the most part, they bought American. Global competition didn't really exist yet. So, those four American companies largely were competing with each other. Now, we have cars coming into the US from lots of different countries. Companies headquartered in those countries may pay less and provide fewer benefits. How do the US companies compete? Among other things, they have to consider lowering the cost of producing a car which means lowering the employee rewards structure.

Lots of industries that lead the economy now didn't even exist around 1980. Microsoft had been around for five years, but few people new of it. Apple was similar, although some of the geekier families had invested in the Apple II or its ill-fated brother, the Apple III, but most of the country just looked at it as a passing fad. How about Google? It wasn't even a dream. 

So, when companies were designing or re-designing rewards programs in 1980, they didn't care about what Microsoft or Apple or Google were doing, but what GM was doing may have made a difference.

Fast forward to 2012. If you are in corporate HR, or if even if you just work for a company that provides pay and benefits, you probably know something about your company's rewards program. Perhaps it works well today, perhaps it doesn't. 

But, will it work tomorrow?

We see lots of surveys. Heads of HR always want to know what their competitor companies have? How much are they providing? How much are they spending? Perhaps they want to be near the median, or a little above, or a little below. 

Shouldn't the questions really look more like this?

• Who will our competitors be in 5-10 years?
• What will they be providing in 5-10 years?
• What will it take to compete for talent in 5-10 years?
• Will attraction be important?
• Will retention be important?

If you were analyzing a large company and that company didn't have a long-range plan, you would laugh at it. The CEO has one. The COO has one. Surely, the CFO has financial forecasts of at least the next five years. Does the head of HR?

Sadly, the answer is probably not. And, it would not surprise me if maybe without knowing it, this is one reason that Finance often looks askance at HR.

So, HR people, isn't it time to look into the future to see what the winning HR strategies might be. Your employees of the future would tell you "just saying."

HR People and Consultants Can Learn From the Casey Anthony Trial

I know. You read the subject line of this post and the only reason that you made it into the body of the post is you were curious to see just how I have lost my mind. 

I'm not nuts. I swear to you that I have, in fact, not lost my mind. This trial was an exercise in communications. Two teams of attorneys and their various witnesses were communications consultants. They were each communicating to twelve people. And, unlike, you, me, and tens or hundreds of millions of other Americans, those twelve people didn't have any additional communications consultants -- all the talking head attorneys and attorney-wannabes on the various television and radio networks. These twelve clients, if you will, were held captive, largely in front of the communications consultants, for six weeks. They literally lived and breathed this trial.

Let's get back to benefits and compensation -- human resources issues. If you look at the HR press these days, you can find survey after survey about things like employee engagement, dissatisfaction with managers, cuts in benefits that are untenable to employees, workforce reductions, and many more. I say that the companies who score particularly low in these surveys suffer from the same malady as Linda Drane Burdick and Jeff Ashton, the two lead prosecutors in the Casey Anthony case.

Let's consider. [WARNING: There may be lots of cliches in here]

You only get one chance to make a first impression. In the Casey Anthony trial, there were lots of first impressions. There were the opening arguments. There were the beginnings of testimony by witnesses, both fact witnesses and expert witnesses. I heard a litany of legal experts say what a great job the prosecution did of wrapping up the case. I heard that Linda Drane Burdick put the nail in the coffin. Let's go from the courtroom back to the corporation. The jurors (the employees) were so disengaged by then that they already had one foot out the door. 

Consider this. The prosecution put forth more than 400 items of circumstantial evidence. The jury deliberated for about 11 hours. In reality, though, the jury deliberated for less than 6 hours. I say this because they all returned for the second day of deliberation dressed differently. They had their verdicts. They just wanted to be sure.

Let's reconsider. 400 items. 349 minutes of deliberation. That is less than 53 seconds per item of circumstantial evidence. 

Their minds were made up long before the closing arguments. The fact is that once a manager or consultant (prosecuting attorney) has failed to keep an employee (juror) engaged (on their side), that employee (juror) is likely lost.

The defense did not have a great case. The prosecution told us so. They told us that their experts were more believable. They told us that only Casey Anthony had a motive to kill Caylee. But, the case was lost by then.

If you didn't follow the trial at all, you may get a bit lost now, but I will try to tie it together (for all I know, you may be lost already, but I hope not).

The prosecution delivered a long and eloquent opening statement. Nobody quotes from it. Nobody remembers it. Whatever they said, they didn't link everything to their opening statement.

Jose Baez, the lead defense attorney, is not experienced. He began practicing law in 2005. To my understanding, this was his first murder case. His opening statement was not eloquent. But, as hokey as this is going to sound, Jose Baez did something different and, in my opinion, it stuck with the jury because, ultimately, he built his defense around it. He said. "Follow the duct tape."

From a communications/HR/marketing perspective, do you know what he did, on Day One, and thereafter, and constantly? He branded the defense. The defense's brand was simple: Follow the duct tape. The jury could understand this.

The prosecution case was all-encompassing, or overarching if your game of choice is Buzzword Bingo. It went from here to there to everywhere. They presented evidence upon evidence, all sadly circumstantial. But, they didn't have a theme. They didn't have a brand. Their first impression got lost and they didn't reinforce it. 

Much like many modern managers, they knew they were right, and therefore, the messages they were delivering didn't matter. The facts were so compelling that during the defense's closing, prosecutor Jeff Ashton could assuredly snicker.

A friend of mine went through an acquisition recently. Her company was acquired by another company. And, as she told me, right from the get-go, it was all about the new company. It was never about her ... or her colleagues from the old company. That was all ancient history. She got lost on the first impression ... and so did the acquisition.

OK, smart guy. You've written paragraph on paragraph, what would you have done differently [speaking to self]?

This was a circumstantial case. Everybody knows this. So, of the 400+ pieces of evidence, many (let's say 100) pointed to Casey Anthony as the killer with a very high degree of certainty -- for the sake of argument, let's say 95%. Frankly, though, a 95% likelihood that Casey Anthony murdered her daughter probably should constitute reasonable doubt.

So, what should the prosecution have done differently? I have an opinion, but you already knew that, didn't you. The prosecution needed to brand it's case as "The Sum of All Parts." In their opening statement, they should have said that this was a circumstantial case (I think they did). They should have said that the jurors (employees) were about to hear 400+ pieces of evidence that each, with a high degree of certainty, tie the murder to Casey. Of them, maybe 100 of those 400+ would each tie to Casey with about 95% certainty.

So, let's explain, in our opening statement, to the jurors how the Sum of All Parts works. 95%. That's 1 in 20. That is the same as me asking you to pick a number that I have in my head between 1 and 20 and guessing correctly. That's reasonable, isn't it? It might happen.

OK. So you got the first number correct. Now do it again. Hmm. That's pretty tough, isn't it? Now, let's see you do it 100 times in a row. Is it reasonable to think that you could do that 100 times in a row. We're going to bring on an expert later to show you just how difficult it is to do that 100 times in a row. That means that the likelihood that someone else could have done this is so small (it's a number with a decimal point followed by approximately 130 zeroes before you get a non-zero digit) that it fails to constitute reasonable doubt.

Back to my brand -- the Sum of All Parts. 

So, you start out with a brand, or a message, if you prefer. You explain in the beginning how it is going to work. And, you enforce it. And, you reinforce it. And, you make it believable.

If your brand relates to a wellness program, sell it on Day One. And, keep the message going. Don't let it leave the minds of your employees (jurors). Don't confuse them with a can of stink (if you're not familiar with the trial, that won't make sense) or with the pay raises that you plan to give when the company returns to profitability. 

Look at all the most powerful brands. They never leave their messages. Coke has been "the real thing" for years. UPS asked us "what can Brown do for you?". In it's most golden years, FedEx told us "if it absolutely positively has to be there overnight." Nike just gave us its swoosh.

Linda Drane Burdick and Jeff Ashton gave the jurors lots of powerful evidence, but it wasn't tied together. Jose Baez didn't give the jurors a whole lot, but he did give them a brand. In my opinion, that brand sat in their subconscious and he didn't let it go. Way back in May, he asked them to "follow the duct tape" and that was his case. It planted reasonable doubt that the prosecution, having the means to overcome, unwittingly chose not to.

So, Casey Anthony walks. And, if you (the employer) don't communicate any better to your jurors (employees), so will they.