Why We Have A Burning Man Policy

Ah, yes Labor Day is upon us and with that many thousands of employees flock towards a dried lakebed near Gerlach, Nevada to cavort and carouse to their hearts’ content while remembering to remain properly hydrated.

And while many of those aforementioned employees have scrimped and saved their vacation time to attend this event, some companies, like Traction just have a Burning Man Policy that allows employees to take the time even if they don’t have any left.

On page 10 of Traction’s employee handbook, right in between the sections on “Voting Leave” and “Military Leave,” is a little section called “The Burning Man Policy.”

This policy states that Traction will prioritize requests for time-off—even if people have no vacation time left—to attend events that inspire or enhance professional and/or creative development such as Burning Man or SxSW.

How fabulous is this? It’s evident that this company “gets” its employees and seizes upon opportunities for creativity and innovation in events like Burning Man.

Yes, benefits and compensation are important, but these days it takes more to be an employer of choice. Understanding what employees want along with what they need is crucial to employee retention and satisfaction.

Besides, what’s a few extra days here and there when you have a great team?

That spark is what makes us special. It’s what enables us to generate ideas. To think outside the 468×60 pixel box. To have a culture where people can embrace their own individuality and contribute it to a collaborative mechanism for the manifestation of creativity. To have a company that is ten years old and less than ten people have ever chosen to leave.

Exactly.

Photo by Scott Beale

5 Ways to Guarantee A Lawsuit Even While Staying Mostly Compliant

Contangy,Brooks and Smith has posted humorous, yet necessary information about the 5 worst practices that can get in an employer’s way even if they are remaining mainly in compliance of the law.

  • Withholding employment
  • Ignoring or refusing to participate in government solutions (i.e. mediation)
  • Failing to participate in the interactive process and/or violating ADA accommodations
  • Forcing an employee to quit
  • Not offering severance (in return for a lease of course)

The way I describe this certainly doesn’t do the list justice. I suggest reading the article to get the full and wonderful irony of the piece.

Exemptions to The Genetic Information Non-Discrimination Act (GINA)

Under current GINA law, employers cannot discriminate against an employee for genetic status. This meaning that the employer cannot request, require or use any information against the employee. But the law seems to have a few loopholes:

The employer is exempt from the law if the candidate submits a video application from which a disability can be seen or recognized in the video. The thing is the employer cannot ask questions about that disability during the interview process:

If an EEO-covered entity directs job applicants to address specific topics in their video resumes, or to respond to particular questions, it must comply with the relevant provisions in the EEO laws. Under the ADA, covered entities are prohibited from asking job applicants to disclose their disabilities before the employment offer. 42 U.S.C. § 12112(d)(2). This would include prompting applicants to disclose their disabilities in video resumes that are used pre-offer.

A covered entity, however, does not violate the ADA if it observes from video images that an applicant has a disability. This is analogous to meeting an individual during the application process and observing that he has a disability. However, covered entities must avoid follow-up questions, or any other disability-related inquiries, prior to making a conditional offer of employment.4 After the conditional offer, but before work starts, covered entities are permitted to make disability-related inquiries (or require medical examinations) if they use the same inquiries or exams for everyone in the same job category.

In addition, GINA prohibits covered entities from acquiring genetic information, including family medical history, from applicants and employees. 42 U.S.C. § 2000ff-1(b). There are six exceptions to this prohibition, including one for the inadvertent acquisition of genetic information.5 Therefore, a covered entity does not violate GINA if it inadvertently acquires genetic information by watching a video resume. For example, a covered entity may learn that a job applicant selected a career in health care because his mother died of cancer at age 35 (family medical history). However, the covered entity may not ask any follow-up questions.

GINA does allow for the above for employees and his/her family members when a wellness program is being offered.

The EEOC begins the opinion letter by pointing out that it classifies wellness programs as a type “voluntary” medical exam/activity. Title I of the Americans with Disabilities Act (ADA) allows employers to conduct “voluntary” medical exams – specifically those that involve obtaining medical histories – so long as any medical information obtained is kept separate and apart from personnel records. However, the EEOC has not taken a position on whether the ADA allows an employer to offer financial incentives for employees who participate in wellness programs that include disability-related inquiries or medical examinations.

The second issue may be reversed, however, as indicated in an EEOC opinion letter:

On August 7, 2008, you sent this office a letter asking whether [redacted] County may require employees to participate in a health risk assessment as a condition for participating in its health insurance plan. In a letter dated January 6, 2009 from former Legal Counsel Reed Russell, we responded that although the Equal Employment Opportunity Commission (“EEOC” or “Commission”) has not taken a formal position on this issue, this office believes the policy you described would violate provisions of the Americans with Disabilities Act (“ADA”) that require disability-related questions or medical examinations of employees to be job-related and consistent with business necessity. See 42 U.S.C. § 12112(d). Our response went on to describe the circumstances under which employers could offer employees inducements to participate in wellness programs without violating the ADA. We said that a wellness program would be considered voluntary and any disability-related inquiries or medical examinations conducted in connection with it would not violate the ADA, as long as the inducement to participate in the program did not exceed twenty percent of the cost of employee only or employee and dependent coverage under the plan, consistent with regulations promulgated pursuant to the Health Insurance Portability and Accountability Act (“HIPAA”).

Of course there is a process:

First, an employer must obtain prior voluntary and knowing authorization from an employee, in writing, before acquiring genetic information for the wellness program. Further, any individually identifiable genetic information provided under the wellness program exception must be used only for purposes of such services in aggregate terms that do not disclose the identity of specific individuals. Finally, an employer may not offer any financial inducement for individuals to provide genetic information as part of a wellness program.

There are a number of other exemptions to GINA such as the interactive process when an employee is requesting an accommodation, pre-employment examinations and physical tests as a requirement of the job, OSHA and the Federal Mine Safety Act as well as certain conditions under Affirmative Action

With all that said, I still believe the best course of action is to not inquire anything of an employee/candidate unless the employee/candidate brings it up first thus saving you a world of hurt.

Activist Forced to Apologize 100 times via Twitter

A Malaysian social activist who publicly criticized (via Twitter) the way his pregnant friend was being treated by her employer was forced to apologize 100 times also via Twitter as part of a defamation settlement with BluInc Media, the aforementioned employer.

Fahmi Fadzil, an opposition politician’s aide and respected commentator on social issues, claimed on Twitter in January that his pregnant friend had been poorly treated by her employers at a magazine run by BluInc Media.

Fahmi wrote an apology to BluInc on Twitter a few hours after making that allegation, but the company’s lawyers later sent him a letter demanding unspecified financial damages for defamation and another apology in major newspapers, said Fahmi’s lawyer, Syahredzan Johan.

Syahredzan said Fahmi settled the case this week by agreeing to apologize 100 times over three days on Twitter, where he has more than 4,200 followers. Syahredzan declined to say who suggested the terms. AP via Yahoo

This seems ridiculous. First off, the first apology is the only apology that matters. Beyond that, it becomes rote, mechanical and ludicrous without meaning. And annoying. I’m sure that Fahmi’s 4,200 followers got it the first time.

Fahmi’s actions irritate me. My feeling is that the employee should avail him or herself of either a manager or HR should he or she feel that something isn’t right. If not HR, then the employe should find someone else in the company who has any sort of authority to report the alleged wrongdoing.

If there truly isn’t any such route available, then I can see where someone could get frustrated enough to want to post it publicly, however passive aggressive (albeit potentially self-destructive) the act may be. But no matter how frustrated the employee may feel, it still doesn’t give an him/her or any other third party claiming to represent the employee to publicly the right accuse a company of wrongdoing in a public forum. It’s a one way allegation. And if an employee (or third party) really wants to address and solve an issue, there is a need for two way conversation.

It’s about the employee/employer relationship. An employer has a duty to provide a safe working environment for its employees and the employee has a duty to follow the process and procedures of a company. If either of those tenets break down, the breakdown needs to be addressed within the organization.

I’ll admit that I don’t know what the issue was, nor am I sure that the accusation Fahmi made in itself wasn’t valid. Big companies can do horrible things in all aspects of business. I just don’t think that throwing an accusation up on Twitter was the most constructive way to handle the situation. Nor do I think it reflected very well on Fahmi himself.

The penalty may also damage his credibility as an activist — how much will his readers trust him after he’s agreed to retract one of his statements 100 times? BluInc probably considered all of this when negotiating the settlement, and in a way the punishment they arrived at is pretty ingenious. [Jezebel]

This being said, however, I don’t think it hurt his popularity in any way. He now has 5,529 Twitter followers, 1300 more than when he started.

David Karp: The Way I Work

Inc Magazine ran an interesting story regarding David Karp, the founder of Tumblr.

In this first person piece, David very openly and candidly describes his less than traditional approach to running a company, but what stands out is how often he refers to his team. Despite the title, (The Way I Work), more often than not, his narrative starts with “we” more than “me”.

We roll out changes to the site every day at 11 a.m. We stagger out small changes, so we can see what works and what doesn’t. We chose that time because we want engineers around if there’s an issue. Plus, it’s early enough that there’s not much traffic. Basically, everything that was finished the day before gets pushed the next morning. It could be a bug fix or a new language file—say, a feature that was translated into French. Or it could be a new feature that’s dark launched—the public can’t see it, but we have the ability to test it.

At the risk of sounding trite, this POV is so refreshing. The days of top heavy government-style management need to be over. Over extended hierarchies just weigh a company down. The structure of the office has changed. It’s not the big bosses who know everything and the cogs below to make it run. Now it’s about recruiting talent at every level and attributing the appropriate respect for each role. Now I’m not so naive to think that companies can run without leadership. Certain expertise is required in certain roles. It is, however, that sweet spot, where the lines of leadership and employees blur that the company can find its voice. And David seems to sense where that line is.

For every new feature we add, we take an old one out. A lot of big sites don’t do that, and it’s a problem. Twitter started as a beautifully simple product, but it’s now going the same route as Facebook. The drive to innovate can overencumber and destroy a product. My goal is to keep Tumblr very focused.

So there it is. Whether it’s developing technology or running a company, the principle is the same.

Keep it simple. And with simplicity comes success.