Editor's Note: Today we launch a new column: "Putting Humanity into HR Compliance." Author Jathan Janove will offer insights on how HR professionals can combine compassion, understanding and empathy with employment law compliance and claim prevention.
Drawing on the knowledge of experts and accomplished HR professionals, as well as his own expertise, Janove will share specific examples of how to work more humanity into discipline, discharge, harassment investigations, performance reviews, health benefits, Family and Medical Leave Act and Americans with Disabilities Act administration, and a host of other compliance areas for which HR typically has responsibility.
If you have questions or suggestions for topics, please contact him at firstname.lastname@example.org.
Human resources professionals are often asked to answer questions that have many layers and complexities: Should this person be fired? Is this request for Family and Medical Leave Act leave correct? Instead of focusing only on how to comply with regulations to make these determinations, consider adopting an executive coaching model.
Most HR professionals are taught to learn the rules and apply them, like compliance officers. When issues or questions arise, the HR professional finds the applicable rule and communicates it.
By contrast, executive coaches use questions and options to foster growth, understanding and commitment in those they coach.
"In many cases, questions can be more effective than statements," according to best-selling author Daniel Pink. "Questions can help people surface their own, intrinsically motivated reasons for doing something, which can deepen their commitment to taking action."
Author Marshall Goldsmith is widely considered the world's foremost executive coach. "The goal in executive coaching is not to provide answers," he said. "It's to create conditions by which the persons coached take ownership of the action plan to benefit themselves, their stakeholders and their organizations."
For employers, executive coaching fosters a cooperative—instead of adversarial—relationship among HR, managers and employees.
Best-selling author and senior HR executive Paul Falcone points out another benefit of the coaching paradigm: job security. "When HR is seen simply as a cost of doing business, it becomes vulnerable to layoffs and outsourcing. However, when HR is seen as a strategic advisor on how to align employee effort with desired business results, it becomes an asset to be preserved."
A Personal Story
When I practiced employment law, I often thought of myself as a coach. Clients came to me with issues, and I helped them with solutions.
However, after becoming trained as an executive coach, I learned that what I had been doing was not coaching—it was advising and directing. Clients presented their issues and I told them what they needed to do. This typically meant I was addressing symptoms, not causes.
Several years ago, a client's HR director invited me to sit in on a meeting she had scheduled with an executive. The executive wanted to fire a longtime employee. He explained the reasons: years of marginal or poor performance, multiple failed performance improvement interventions, the CEO's emphasis on cutting costs and eliminating waste due to a business downturn, and a recent departmental turnover problem the executive thought was due in part to how much this particular employee was disliked.
After he finished, the HR director's first words were, "I have a problem with the documentation."
The executive attempted to defend his position while the HR director pushed back.
Tension began to fill the room.
The HR director turned to me and said, "Jathan, what do you think?"
In the old days, I would've responded by agreeing with the HR director. Instead, I turned to the executive and said, "I want to make sure I have a clear understanding of the business case."
I went over the various performance and behavior issues and confirmed with the executive that I understood what was keeping him up at night.
Next, I said, "In these circumstances, I employ a four-part checklist." Here it is:
- Would the termination be substantively fair?
- Would it be procedurally fair?
- Would it be consistent?
- Are there special factors present?
We then went through each of these points. I indicated that I thought the executive made a powerful case on the first point. However, as we worked through points two and three, the executive acknowledged problems, including false positive performance reviews, inconsistent messages, and failure to apply the company's disciplinary policy. We also discussed the special factor that this employee was well into his 50s and had been employed for many years.
I next shifted the discussion to risk, saying, "I find it helpful to identify options and look at the costs and benefits of each.
"One end of the risk spectrum would be to fire this employee today. However, as we discussed, both the likelihood of an age discrimination claim and the magnitude in terms of cost would be very high—something that would probably make your CEO very unhappy.
"At the other end of the spectrum, we could do nothing, which essentially eliminates the legal risk but has a high ongoing business cost.
"Perhaps it makes sense to look at an option somewhere in the middle, one that carries some risk yet makes business sense."
The three of us ended up choosing a middle option—what the HR director called "the mother of all performance improvement plans." They presented it to the employee along with reasons why they doubted he would be successful in making the necessary changes. They offered him an alternative path: a severance package. The employee chose the latter and left the company quietly.
A few months later, the HR director said to me, "It was great getting that issue resolved. But do you know what the best part was?
"What?" I asked.
"The impact on my relationship with this executive and his department. Instead of waiting until the last minute and then springing issues on me, we discuss employee issues promptly and proactively. It's a collaboration, not a contest."
Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018.