Archive for HR

How to Prepare Parties for a Mediation

prepareMany of us are in a role to support mediation for our agencies or organizations. There is empirical data that demonstrates the most successful mediations occur when both parties come to the session prepared. Yet, there are many instances where the parties participating in the mediation don’t have a basic understanding of what to expect or how to leverage mediation. As professionals in this field, we all have an opportunity to improve the quality of mediation sessions by helping participants prepare. Here are some strategies we have found valuable when preparing parties for mediation:

  • Encourage the parties to ask questions before mediation to gain an understanding of what to expect. Of course, they can always ask questions during the mediation, but it can be helpful to be in a better frame of mind if they know what to expect prior to the actual session.
  • Parties should discuss what they see as the root causes of the dispute, not just the specific concerns raised in the complaint or grievance.   For example, even if the complaint centers on discrimination, ask the parties to think whether issues of trust, respect, or work styles are important root causes.
  • Parties should be prepared to discuss these underlying issues and bring them to the awareness of the other person. For example, in a complaint involving harassment the root cause may be how one party feels the other person communicates with them.
  • From both parties’ perspectives, encourage them to think about how resolving the dispute can improve the relationship now, rather than waiting for final adjudication, which can take years.
  • Both parties should keep an open mind and be prepared to listen to each other.
  • The parties should think beyond the mediation session. If some resolution is reached, think about how they will maintain the agreement so they’re not in the same place six months from now. It’s best to find a way to resolve the issue long term so everyone can move forward.
  • Encourage the parties to think outside the box as it relates to resolving the dispute. Let’s say it’s mediation about an employee not getting promoted. Both the employee and the manager may think the only resolution is the actual promotion. In most cases, that may not be a feasible outcome, but there are several other things that could be viewed as potential terms to a settlement. Encourage each of the parties to think about the following in preparation:
    • For the manager: Be prepared to offer specifics on where the employee fell short? If it was at the application review step, maybe offer some coaching from HR on putting together an application. A similar offer could be made for interviewing tips, if the employee did poorly during the interview.
    • For the employee: Be prepared to consider that maybe you weren’t the best candidate, but find out why, and be open to a plan to address any deficiencies. If your goal is to be promoted in the future, use this as an opportunity to get some advice and/or resources to be more competitive in the future.

It is key to get the parties thinking beyond the obvious, but it is important to encourage them to start thinking before the mediation. We have found it made a huge difference in their attitude about the mediation, and ultimately led to more positive results.

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How To Move the Conversation from Diversity to Inclusion

diverstiy inclusionAs experts in our respective fields, we are often called as consultants or coaches to help managers in our organizations manage through an ever-changing, diverse workforce. It’s usually in these situations that you discover a basic challenge: most managers oversimplify the diversity issue and forget that diversity without inclusion can hurt an organization. We’d like to offer a real-life example to illustrate this challenge.

One of the Art of Resolution principals worked as the HR manager for a small organization, in a small town, whose growth had been stagnate for many years, but received funding to increase staffing.   Before staffing-up 38% of the current workforce could retire.   Without the new hires, the organization was close to being in crisis. In little over a year, the organization doubled in size. Most of the original group of employees all had more than ten years with the organization and they were a close-knit group. The new hires were generally younger, many who had just graduated from college. This recent recruitment diversified the age in the organization and provided it with a better representation of their customers, but the new employees lacked experience, they listened to different music, they were just starting families, they used different slang, they relied more on technology and in many ways were very different than the original employees.

As time went on, the divide between the new hires and the original employees grew. The original employees did not include the new employees in informal gatherings; they had nothing in common; they weren’t transferring institutional knowledge; they weren’t working as a team and they weren’t taking advantage of the different views of the new employees that could help move the organization forward. Many of the original employees were intimidated by this new group of employees and feared they would take their jobs and hurt their opportunities for advancement.

Morale was declining by the day.   Management was baffled because they solved the impending crisis – hiring up made them less vulnerable to losing up to 38% of its workforce, but in doing so, they made the original group of employees feel devalued and the new employees felt unwelcome. A second crisis developed.

If you looked on paper at the organization, it had all the external appearances of diversity (albeit one dimension – age). But there were many additional diversity components that were actually a barrier to inclusion.   The HR manager proposed an inclusion plan which included approaching several of the influential employees in the original group to discuss the morale and the impact it was having on the organization’s ability to meet its mission. These group members agreed it was harming morale and together brainstormed ideas to be more inclusive. This included inviting the newer hires to brainstorm ideas for inclusion, inviting them to informal gatherings and ensuring they were represented on employee committees. It also included a plan to capture and share the institutional knowledge in the original group and share it with the newer hires.

This was already a good organization before the growth. They produced quality products. They were timely and were recognized by Headquarters as a high producer, but over the next few months, with this true recognition of diversity and implementation of its comprehensive inclusion plan, the organization flourished to new heights raising the production expectations of all employees.

The story illustrates the challenge of achieving diversity without a plan for inclusion. It also illustrates the important role we all play as EEO, diversity and HR professionals in helping management navigate building a diverse but inclusive environment.

What strategies have you employed to address diversity and inclusion in your organization? We’d love to hear them.

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Join our New LinkedIn Group!

linkedinWe are delighted to announce that we have formed a group on LinkedIn called EEO and Diversity Professionals. We created this group as a virtual gathering place for EEO, diversity, conflict management (i.e., ADR) and human resources professionals to exchange perspectives and learn about the latest developments in our fields.  The group is founded on the notion that EEO, diversity, HR and ADR professionals share common interests and that their success is often predicated on their ability to collaboratively address complex human resources issues by creatively integrating their EEO, diversity, HR and ADR expertise.

We recognize there are a number of superb LinkedIn groups covering these important topics albeit in a highly specialized format. While we believe these groups are extremely valuable, and we plan to continue our active participation in these other groups, we want to fill what we believe is a gap by creating a place where subject-matter-experts from EEO, diversity, ADR and HR gather to get the latest news from our fields and participate in in-depth discussions. Our conversations will be broad and inclusive to be of interest to professionals in the private and public sectors; those who are employed by firms or agencies as well as those who are self-employed. We’ll tackle problems, discuss cases, and share employment and contract opportunities. We will ensure there is plenty of interactivity by publishing routinely informative and thought-provoking blogs. We’ll also invite experts from these fields to post blogs, comment on the latest rulings or directives from EEOC, MSPB, OPM, courts, and other regulatory bodies, and share best practices.   We hope this gathering place will generate tremendous synergy, advance unique ideas, and afford comprehensive solutions to problems we encounter in our respective fields by applying our combined knowledge, experience and expertise.

So, if you enjoy exchanging ideas, engaging in robust discussions and sharing perspectives on human resources topics involving EEO complaint processing, developing and executing successful diversity and inclusion strategies, and managing conflict in the workplace, this is the group for you.  If you are interested in joining, click here!  

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Investigating Non-Selection Complaints

investigationIn our last post, we discussed how to defend non-selections from a selecting official’s perspective. In this post, we’ll discuss this issue from an investigator’s perspective.

Those of us trained as EEO investigators, are familiar with the shifting burdens of proof outlined in McDonnell Douglas v. Green. Of specific note is management’s burden to articulate a legitimate, non-discriminatory reason for its actions. In this case, we are looking for management’s reasons for not selecting the complainant. Countless times, we see (as investigators and reviewers of investigations) managers saying, “I picked the selectee because they had more points than the complainant.” They offer nothing more. Both McDonnell Douglas and EEOC have found that a more comprehensive answer should be provided.   A manager must provide a response that is more than “I didn’t discriminate” or “The selectee got more points.” Management must give a reason, specific enough, for the complainant to rebut.

In practice, this requires investigators to probe management officials for more specific reasons for not selecting the complainant. We offer the following ideas for probing selecting officials, and in some cases, panel members for specific reasons for their decision.

  • For the selecting officials:
    • You testified that you chose the selectee because they received more points than the complainant. Did you consider any other factors in your decision? If so, what where they?
    • Please provide the criteria you used in your selection process.
  • For panel members:
    • Please provide a specific explanation as to why you found the selectee to be superior to the complainant. Provide details about how you scored the complainant and the selectee.
    • What criteria did you use to evaluate the candidates for this position? How did the complainant and selectee compare using this criteria?

These follow-up question should elicit responses that are specific enough to be rebuttable. Without these follow-up questions, an investigator risks having a case remanded for supplemental investigation, and there is some risk for management’s ability to defend its selection.

As investigators our jobs are made easier by selecting officials who are able to articulate a specific reason for their selection, but we must be prepared to probe when management officials or panel members are not able to provide specifics regarding the process they followed and how they applied the criteria.

What questions have you found helpful in obtaining a thorough articulation from management?

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Making a Bullet Proof Selection – Part 3

defendIn part 1 we talked about recruiting for the best applicants; in part 2 we talked about making the right selections and now, in this 3rd and final part, let’s talk about defending the selection. By doing the work upfront that defines how the selection process will be handled, you have already laid the foundation to defend it.

The first component is to ensure the process is followed consistently. As soon as a manager doesn’t do what the plan says they are going to do, they are placing the organization at risk. As soon as a manager doesn’t follow the same process as the rest of the managers, the organization is at risk. The best thing about a good crediting plan is that, when done correctly, it is designed prior to anyone knowing who the applicants were. It’s difficult for someone to prove discrimination, when the process was pre-defined and merit-based. Sometimes managers want to change things up in the middle of the process. Doing so undermines the process, and and will place the organization at risk.

The next component is breaking down the process. HR will make qualification determinations based on OPM qualification standards and the position description before sending the manager a certificate(s). Next, if there is more than one candidate, a best qualification (BQ) most be determined, I recommend a panel to determine the BQ applicants using scoring defined in the crediting plan. Once the BQ list has been determined, HR should send an alphabetized list to the selecting official. Do not include the BQ scores. Once determined, BQ, those applicants are considered equally capable of being successful for the position.

Once the selecting official has the alphabetized BQ list, the crediting plan should indicate how the selecting official differentiates between individuals on the BQ list. This can be accomplished by a review of the applicant resumes or applicant packets, or have the BQ determination not include interviews. Let the selecting official complete the interviews and scoring. Whatever manner your managers feel comfortable with. The key again though is to have this pre-determined and indicated in the crediting plan. Many selecting officials just want to look at the applications and make a selection. Although not improper, it does make it difficult to show why one person was selected over another.

With a good performance based interview with some technical questions included, the selecting official should be able to identify the applicant that best meets the needs of the position and the organization. This also gives ownership of the selection to the selecting official. Yes, interviews can be time consuming, but a proper selection is worth the time and effort. And being able to defend the selection could avoid large cost in a discrimination case down the road.

Other considerations:

  • Keep HR off the BQ panel unless it’s an HR related position. HR should own the process, ensure it’s followed consistently by all managers and defend it in front of any third party.
  • Keep diversity in mind when forming the BQ panel.
  • Keep as much personal information such as birthdates, race, etc out of the packet as possible.
  • A supervisor that fully understands the skills needed to be successful in the position should write the crediting plan. HR should help.
  • The crediting plan is a living document and should be updated after each recruitment and make any adjustments that may be needed.
  • Train the selecting officials on the process. Also have a briefing with each BQ panel prior to them meeting to ensure they understand their role and to ensure consistency.
  • If the BQ panel meets on more than one day, do not change members. The same members of the panel should review each packet. This also ensures consistency.
  • Have lunch and learns for employees on the merit promotion process. The process should be transparent. Also offer training to employees on KSA writing and interviewing techniques. This can help reduce complaints.
  • Make sure the union is involved at the proper points of the process that is defined by the collective bargaining agreement.
  • Crediting plans are confidential and should never be shown to potential applicants.

By using the ideas in the three parts and ensuring consistency throughout your process, you can be confident you are making bullet proof selections.

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Making a Bullet-Proof Selection, Part 2

planLast week in part 1, we discussed the importance of having an accurate position description and the need for it to describe the skills needed to be successful in the position. The next thing I do is work with the manager to ensure a plan is in place that differentiates among applicants and to gets the best applicants to the selecting official. Review at the merit promotion plan, crediting plan or whatever it is you use to outline the process and establish the guidelines for selection. It’s probably a combination of things. I can’t count how many times a manager has told me they want to select someone other than who was referred to them. The key to getting the right list of highly qualified applicants to the selecting official starts before the vacancy is announced. It includes a couple different tools that work in unison.

  1. Merit promotion plan. Although the Office of Personnel Management (OPM) requires every agency to have a merit promotion plan, the merit promotion plan is the plan for the entire organization and they can be somewhat generalized.
  2. A must consideration is any collective bargaining agreements (CBA) the agency may have with one or more unions. Obviously, anything you do cannot conflict with the CBA.
  3. The last tool is a crediting plan specific to the position you are announcing. This is the piece to the puzzle that helps select the right applicant. I’ve seen many different crediting plans, but the ones I like best are detailed and describe how the applicants will be evaluated. It should include a detailed description of the processes to reach the best-qualified (BQ) list and ultimate selection. It should also include any knowledge, skills and abilities (KSA), interview questions, work sample exercises or any other methodology that will be used during the process to differentiate among applicants. It should also show how each method is scored. The key to getting the best applicant to the selecting official is to make sure the KSA’s and interview questions are tailored to the position and address the skills and experience needed to be successful in the job being announced. Developing a detailed crediting plan requires a lot of front end work, but will ensure your getting the high level candidates for the position.

The time and effort put forth in hiring for a position deserves the attention needed to get the right applicant in the position. A poor selection can be costly to the organization both financially and from a workflow standpoint. I have found that to minimize the risk of a poor selection, the organization should have a structured hiring plan in place that uses a structured interview process such as performance based interview questions and a work sample exercise. These two items would be defined within your crediting plan and used together helps you make that bulletproof selection.

Next week we will talk go over part 3 of the series: Defending the Selection.

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57,000 Federal Employees on Paid Administrative Leave? Five Basic Steps to Keep You Out of the Headlines

The numbers reported in the October 20th Washington Post article of federal employees placed on administrative leave after leavebeing accused of misconduct are staggering:

  • More than 50,000 on leave up to three months;
  • 4,000 on leave three months to a year; and
  • Several hundred on leave from one to three years.

This is probably not a shock to those who work for the federal government. It wasn’t a surprise to us either – we saw this a lot when we worked in the government.

Why are these numbers so high?   Because it’s easier to get the accused employee out of the office rather than deal with the issue head-on. The problem is once the person is removed from the equation, it’s easy to lose the sense of urgency, and so a person remains out of the office indefinitely. The cliché -out of sight- out of mind fits here. A second reason is that despite the practice being contrary to numerous Comptroller General decisions and OPM guidance on the appropriate range for administrative leave, there is no consequence for the agency. It’s likely that government officials will be doing a quick assessment to see who they currently have on admin leave and work on a plan to get them back to work. It’s also likely Congress will come up with something in the area of accountability given the level of outrage expressed in the Post article.HandlingMisconductIn the meantime, here are basic steps management should follow when faced with allegations of misconduct:

  1. Develop a plan of action. Immediately assemble the right team of advisers to investigate the allegations with firm deadlines. The key is to do this quickly. Your team should include whatever subject matter experts are necessary (HR, LR, EEO, OGC). Notify management and obtain approval if necessary.
  2. Advise the accused employee of what to expect. It’s important to communicate with the employee accused of misconduct of the plan of action, and what s/he will be expected to do during the course of the investigation. Here is where many supervisors are making the easy call of placing the employee on administrative leave until the investigation is done. Exercise extreme caution when authorizing admin leave. Consult with your legal counsel, but generally, you only need to take the person out of the workplace if they are a danger to themselves or others; if there is an issue of trust of the employee continuing to access their files or the agency network; or there’s a concern the employee will cause a disruption in the workplace.
  3. Conduct an inquiry into the allegation. The scope of the inquiry depends on the allegations. You may just need basic fact-finding, or you may have to convene an administrative investigative board.
  4. Stay on top of the team conducting the inquiry. Inquiries performed by internal teams often take longer because of conflicting priorities or lack of investigative expertise. Communicate regularly with the team to ensure they will meet the deadline you’ve given them.
  5. Review the findings of the team and take the appropriate action. Either there is evidence of misconduct or there isn’t. If there isn’t evidence, communicate that to the accused and other interested parties and get back to business as usual. If there is evidence of misconduct, work with HR to craft the appropriate corrective action and take action

Dealing with misconduct is never easy. You’ll stay out of the Washington Post if you deal with the issue head-on and promptly.

What steps have you taken when faced with allegations of employee misconduct?

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