Newslettter #9 (November 4, 2024)
DHL skills-based L&D, Dairy Queen/DOL fight, DOL/RTO fight, FMLA sanity, an 18 year highway construction project, and more
Welcome to Newsletter #9, my twice-monthly, long-form newsletter where I write about all things HR and L&D, the business world, and/or other interesting current events.
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1. DHL gets skills-based learning and development. They are going all-in and I couldn’t be more of a fan.
I did a shorter post about this on LinkedIn, but suffice to say I am a fan of this development from DHL. Investing in technology to at least partially replace the traditional role HR and L&D have played in career path planning has long been a dream of mine. Why? While a company’s desired skillset for a role and therefore a career path are generally linear, the career path of most employees is not. They tend to resemble a bowl of spaghetti noodles: a huge pile of skills which may lead an employee to another role but not necessarily the next one in a linear path or frankly even at your company.
Because of this mismatch, career path conversations for each employee need to be customized and available to employees on a passive basis. Let them explore what other roles they could take on at your company. Having career conversations with employees takes time to prepare for, is complicated, difficult, and often, is an ignored or delayed process. And this is assuming the company wants to keep them around!
DHL's upcoming Career Marketplace bridges that gap, helping employees identify their current skillset and matching their skills with growth opportunities within the company via AI. Employees then have the option to take training...."to upskill themselves to the roles/paths they seek in a career at the company.” By putting this technology in the hands of their employees to passively find their own way through a career at the company, each person can navigate their own custom journey without having to wait on someone to spend time analyzing how it can be achieved. Well done, DHL!
2. A lawsuit from a Texas Dairy Queen chain is the latest salvo at the DOL’s new salary threshold for exempt employees.
I’ve previously written about the latest attempt for the DOL to update the salary threshold for exempt (salaried) positions to qualify for overtime exemption. I’ll be curious to see what happens with this latest attempt to stymy the new threshold. Most case law has settled the argument that the DOL has the authority to increase the amount, though there was that 2016 attempt by the Obama Administration-era DOL that was shut down in 2017. The difference is the amount that the salary threshold is attempting to set. 40% (percentile) in 2017 was government (DOL) overreach according to the courts so it will be curious to see if 35% (the 2024 attempt) is too much also.
As the article on Dairy Queen states, “Last month, a three-judge panel of the 5th U.S. Circuit Court of Appeals upheld a lower court's ruling that sided with the government, writing that the "link between the job duties identified and salary is strong." But the justices added that the DOL's "power is not unbounded."”
Suffice to say, the current threshold (which just went up in July 2024 to $43,888, from the $35,568 in 2019) is still remarkably low. The argument comes down to “how much is too much” for the salary test to invalidate the duties test (for exempt-level considerations)? Maybe we will have an answer before the new $58,656 goes into effect January 1, 2025. For now, SHRM and other HR advisors continue to implore companies to be ready nonetheless. Personally, I am advocating the same: better for you to have a plan in place assuming it is going to effect. That does not mean to inform employees what you are going to do, but be ready with a plan for 1/1/25.
3. The 5th Circuit Court of Appeals said in a 9-8 decision that the NLRB cannot restrict the First Amendment.
In this case, it was from Elon Musk, who tweeted (to the effect of) if employees joined a union, they could lose their stock options. More specifically, the tweet in question from Musk read, “Nothing stopping Tesla team at our car plant from voting union... But why pay union dues & give up stock options for nothing?"” The NLRB issued an order to Musk to delete the tweet.
I’m not convinced that tweet in of itself was doing anything to prohibit or chill any protected activity by Tesla employees. I’m not siding with Musk, but he does have a right to state his opinion, and apparently the Court agreed with that.
The 43-page court opinion does show some division in the Court, while acknowledging the NLRB likely went too far. Interestingly, though, the opinion does not specifically cite how far is too far (for the NLRB to rein in anti-union speech). Future cases will likely test this with the proclivity of social media usage. Stay tuned.
4.RTO, oh RTO, wherefore thou art, oh RTO?
Speaking of the DOL, I think they are the largest government segment to order their employees to RTO in an announcement in late October. According to numerous sources, over 7,000 DOL employees will need to be in-office 5 days every bi-weekly payperiod, beginning January 1, 2025.
I’ve written about RTO several times in prior newsletters, and while every company should decide what is best, suffice to say it is not a good look for government employees to continue to WFH when so many other companies are telling their employees to RTO. The talking point of ‘taxpayer funded entities’ needing to work in-person seems to have caught the attention of some government leaders as evidenced here with the DOL.
5. Not sure why I’ve noticed the amount of news about government agencies lately, but this EEOC update is disheartening.
The EEOC has said in recent weeks it wants to collect pay information again like it did a few years ago. Companies should be held to account to reduce or eliminate pay disparities for gender and race equity concerns. I think more should be done about that, to say the least.
In the referenced article, a review of the 2017 and 2018 pay information that was submitted to the EEOC, HR Dive found there were (gasp) pay inequities.
That said, the additional burden of companies needing to report this information in their EEO-1 is frustrating. I remember doing those reports and simply put, it was a pain in the ass. And I was not the only one who noticed that of course, as “the National Academies found evidence that Component 2’s requirement that employers aggregate their pay data into occupational and pay-band categories set by EEOC could be burdensome. The form also tasked respondents with grouping employees into categories based on their annual wages, “but annual wages reflect different hourly wages for individual employees, and it is unclear how hours worked should be apportioned to calculate hourly pay rates,” the National Academies said in their report.”
If the EEOC is insistent on doing this again, please for all that is holy, make it easy on employers to submit the data, and require HCM software companies to pull the data together in a consistent format.
6. Finally, some FMLA sanity.
This case from the 3rd Circuit Court of Appeals confirmed what we all should know is required to qualify for FMLA leave: you must go to the damn doctor to establish basis and treatment for the condition and not for the first time after you are fired.
The bus driver in this case had racked up multiple absences due to alleged migraine headaches and was fired by his employer for the absences. The company held a hearing (note: I’m assuming this was a unionized workplace) and agreed with the recommendation to terminate his employment. Only after his termination did the driver request FMLA leave, later suing for retaliation. The best part of this whole case is he had never gone to the doctor for the headaches!
Thankfully, the Court saw through this as a major issue in his suit, agreeing unanimously “that an employee does not have a “chronic serious health condition” if the employee is evaluated by a health care provider and obtains FMLA certification regarding the condition after the fact.”
7. Gartner said its July 2024 HR leader survey showed leadership development is a top 2025 priority.
In fact, it was the Number One priority for the 3rd year in a row, according to Gartner. This should not be a surprise to any business leader, let alone HR professional. Workforce and societal demographics likely play the largest role in this, along with the effects of the Great Resignation, among other factors.
As a stagnating labor pool begins to affect companies worldwide, albeit at different times, it should come as no surprise leadership development must be a priority for every company. You really have two options: 1) continue to hire external leadership talent to bring in to your organization, or 2) develop your own. As with most any other choice, a balance of the two is likely appropriate for most organizations: bring in strategic new blood for certain roles and develop all the others.
It is a fools errand to think your path to success as a company is to always go out to the market and buy the best talented people available. Bringing in new leaders inevitably leads to changes, and while some changes are good for any organization, too much change in a short time may likely lead to higher levels of turnover. Existing employees become frustrated and disillusioned when this happens, exacerbating your company’s leadership issues (noting here: leadership is not just figurehead leadership at the top; leadership also comes from established, high-performing employees).
Therefore, it is imperative that every company determines how they will incorporate leadership development practices into their people processes. It is a must for success moving forward.
8. A $13 billion highway construction project in Houston, Texas, is going to take 18 years to complete.
You read that right. 18 years. The construction process, recently launched, will allegedly modernize traffic flow in the more significantly trafficked areas of Houston, which are 11 of the top 100 most congested roadways in Texas. What’s interesting is the most significant part of the project is only 12 miles long. Incredible.
9. LinkedInLunatic of the Newsletter belongs to…..
……for the second newsletter in a row, not a Lunatic. The fourth wall has been broken.
10. The owner of the Oakland A’s – wait, the Sacramento A’s – and in a few years, the Las Vegas A’s – is said to be paying for most of the new Las Vegas ballpark.
If you count $1 billion out of a $1.5 billion price tag as ‘most’, that is. John Fisher, the A’s owner, recently confirmed this information in this article with the Las Vegas Sun. This entire escapade is still an embarrassment for Major League Baseball, but I suppose if the owner is not relying entirely on public funds, it’s a plus. Right?
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That’s it for now. I’ll be back in two weeks!
© November 2024 Brandon Caldwell, all rights reserved. Hyperlinks are used frequently for proper credit to source material on respective websites, news articles, social media or other sources. While it can be a useful tool, no ChatGPT or other generative AI was used in the production of this newsletter. Opinions are mine and do not reflect the opinion or policy of others including employers past or present.