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Become a Compliance Coach
Vol. 56   No. 8
Don’t be the one who always says ‘no.’

By Jathan Janove  8/1/2011
 
In the provocative “Why We Hate HR” article in Fast Company magazine in 2005, the author chastised HR for being “at best, a necessary evil—and at worst, a dark, bureaucratic force that blindly enforces nonsensical rules, resists creativity, and impedes constructive change.” The author asserted that of all the corporate functions, HR has “the greatest potential” yet is “the one that most consistently underdelivers.”

One way HR professionals can establish cooperative, trust-based and synergistic relationships with management—and make sure they aren’t underperforming—is by converting from a compliance cop to a compliance coach.

‘This Is the Answer’

I was inspired to write this article after the following exchange with a senior executive.

“I’m the head of our company’s research and development division,” Bill noted. “If I ask an engineer to redesign a manufacturing process, I expect to see multiple options, ranging from preserving the status quo to radical re-engineering. What are the costs, benefits, risks, pros and cons of each alternative?

“But with HR, it’s always, ‘This is the answer.’ Period.”

Bill continued: “This attitude is especially frustrating because I don’t feel competent dealing with the subject matter. If it’s engineering, I can get down in the weeds—it’s my background. Same with manufacturing, IT and even accounting. But employee relations—ugh! I need someone to help me, not aggravate me.”

“Can you give me an example?” I asked.

“Sure,” Bill said. “Due to the layout of our plant, the employee parking lot is some distance from where employees work. One of our employees got hurt off duty while riding a motorcycle. After he returned from leave, he brought in a doctor’s note saying he needed a parking space much closer to his work area.

“To ‘accommodate’ this employee, as the HR manager said we had to do, we created a parking space for him in the shipping/receiving area. I wasn’t too happy about it because we have large trucks coming and going, and drivers would have to keep a lookout for the employee and his car. But I went along with it, thinking it was temporary.

“Well, it’s been over two years! But HR tells me the employee gets to keep his parking space because his doctor says so. Yet I see him walking all over the place without a problem.

“He’s not a very good employee, and his ‘I call the shots’ attitude really bugs me. But HR says there’s nothing we can do about it—he’d sue us, and we’d lose. So we’re stuck.

“I don’t know enough about the legal issues and don’t have the time or expertise to figure them out, but my gut tells me this just isn’t right.”

Provide Options

Matthew Effland, managing shareholder of the Los Angeles office of Ogletree Deakins, says Bill’s story is not unusual. “HR, which knows firsthand the risks involved in disregarding state and federal employment laws, must remember that it provides support for the operations side of the company. Without operations, there’d be nothing to save from litigation.

“So, I recommend to my HR clients—particularly when confronted with a situation like Bill’s—provide as many options as possible to help those in operations feel like they have some buy-in to the decision-making process.

“For example, the situation Bill raises involves an underperforming employee receiving special treatment for a documented, but somewhat dubious, disability. Bill, however, was presented with an either-or situation: Either the company gives the employee everything he wants, or the company gets sued and loses. That gives Bill nowhere to go, as he either capitulates to the whim of a worker or takes the blame for a big hit to the company’s bottom line.

“There’s actually a lot more to it than that, however. For example, if the employee’s initial request for a close parking space suggested the accommodation was only temporary, the fact that the condition continued after two years may give the company a basis to revisit the issue and amend the accommodation to the extent it is no longer reasonable or now constitutes an undue hardship. Alternatively, if there truly is a question regarding the extent to which the employee is disabled, a functional capacity exam or fitness-for-duty exam may be considered under the right circumstances. The key here, of course, is that if Bill understands there are steps that can be taken short of simply giving the employee what he wants, he may be more willing to let HR take the proper steps to minimize legal risks.

“There is also the underlying fact of the employee’s poor performance. That, more than anything, seems to be driving Bill’s frustration. Simply being involved in an accident does not give an employee free rein to fail at his job; he must still adequately perform, with or without the offered accommodation,” Effland says.

Provide options to help those in operations feel like they have buy-in.

“Here, the company made it clear it’s willing to work with the employee on his disability by providing the requested accommodation for more than two years,” Effland adds. “But Bill believes HR is telling him that the employee is untouchable due to his disability, and that simply isn’t the case. To the extent the employee is not performing the essential functions of his job, or performing them poorly, Bill should be told that he can progress the employee through the normal stages of the company’s disciplinary process. Provided the deficiencies are documented, the company will have a strong basis to defend against any claims of discrimination or retaliation the employee might raise.”

Just Say ‘No’ to ‘No’

Bill’s complaint has been echoed by many executives and experienced HR professionals.

According to Louis Franzese, vice president of global labor relations and HR practices at The Hertz Corp. in Park Ridge, N.J., “We say ‘no’ way too often.” He says HR professionals need to be less rigid and more solutions-oriented.

Sharon Toncray, labor and employment counsel for Providence Health & Services in Portland, Ore., states, “If you’re seen as the ‘no’ person, you won’t have a seat at the table. People will avoid you.”

Max Neves, vice president of human resources at 1-800 CONTACTS Inc. in Draper, Utah, agrees but notes this doesn’t mean always saying, “Yes, boss.” When “no” really is the answer, it needs to be explained. Neves recalls a time when the chief executive officer of a former employer told him, “I want to fire the head of operations.”

“Why?” Neves asked.

“Because he’s too old.”

“You can’t do that.”

“Yes, I can. I’m the CEO.”

Neves responded, “Let me rephrase what I said. You can do whatever you want if you’re willing to suffer the legal consequences. But before you do, let’s explore some alternatives.”

Following their discussion, the CEO changed his mind.

Aikido vs. Karate

Both aikido and karate are defensive martial arts. In karate, however, the defense is typically to block the attack and strike the attacker whereas in aikido, the defender blends with the attack and channels the attacker’s energy to a place where no one gets hurt.

When an attack comes to an HR professional because management wants something done that violates a policy or raises legal problems, the karate response is “No, you can’t do that because …” It’s a karate block and strike. By contrast, the aikido response is to blend by saying, “Let me see if I understand what you’re trying to accomplish and why you think this action is the best means to accomplish it” and then channel by saying, “Here are options that should help you accomplish your goal and help protect the company.”

Scott Parson, president and CEO of Oldcastle Materials, Mountain West, in Ogden, Utah, was an HR director in the past. Parson cautions that the “compliance mentality” tends to make HR professionals frame messages to management in terms of “what you can’t do, versus what you can do.” When managers raised issues with him in his HR capacity, Parson worked hard to resist the tendency to say “no.” Instead, he would say, “Let me do some research and get back to you.” Parson did this for two reasons:

  • By doing the research, he might discover options that would avoid his having to say “no.”
  • Even if “no” was the answer, managers’ resistance tended to be much less if they knew he had strived to find a viable alternative. 

Tim Conner, senior vice president of human resources at Associated Food Stores Inc. in Salt Lake City, underscores this point. “We in HR tend to see things in black and white, yet there’s almost always a shade of gray. Sometimes, you have to look for it.”

Monica Whalen, president and CEO of the Employers Council in Salt Lake City, encourages HR professionals to see themselves as compliance coaches. “Your job is risk analysis. You identify the pros, cons and options, but management makes the decision. Even if you don’t agree with it, accept the fact that they view a bigger piece of the landscape and ultimately the decision is theirs. The question shouldn’t be ‘Did management agree with me?’ It should be ‘Did I give them the tools to make a good decision?’ ”

Toncray adds, “If there are legal risks inherent in a contemplated action, don’t belabor them. No one wants to hear the 82 reasons why something might go wrong. Instead, quickly get to the options. That’s where your focus should be.”

A Foolish Consistency

Executives and many HR professionals share Ralph Waldo Emerson’s dictum that “a foolish consistency is the hobgoblin of little minds.” According to Franzese, “There may be occasions when it’s OK for HR to do what some consider heresy—make exceptions.” He explains that each circumstance calls for an individual look at costs, benefits and risks.

Conner gives an example where an employee was about to be fired for refusing to comply with a policy. However, Conner had the HR generalist investigate the matter further. When the circumstances came to light, they learned there had been some miscommunication. The result was a finding that the employee did not commit an out-and-out refusal that required discharge.

Toncray points out that “consistency is not a law unto itself. There are times when exceptions can and should be made, such as technical noncompliance that isn’t substantive. Perhaps the manager used the wrong form in counseling her employee. But if she conveyed and documented the necessary information, that’s what really matters.”

Tom Crane, chief human resources and communications officer for Skanska USA in New York City, agrees that exceptions can be made in certain circumstances. However, he cautions against making exceptions if they would run contrary to “important company values.”

Becoming a compliance coach rather than a compliance cop is an important first step for HR professionals in making sure they are not perceived as underperforming. 

The author is a shareholder with Ogletree Deakins in Portland, Ore., and author of The Star Profile: A Management Tool to Unleash Employee Potential (Davies-Black Publishing, 2008). Write him at jathan.janove@ogletreedeakins.com.

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