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Question Authority

HR is bound on all sides by rules and laws. And, yes, you certainly need to be regarded by the leadership as a trusted partner in keeping the company on the right side of legalities. However, I would like to add this: Break as many rules as you can.

September 18, 2003
Related Topics: The HR Profession, Miscellaneous Legal Issues

This is going to annoy the lawyers. But some things just have to be said, the most important of which is this: Never think for a moment that your corporate attorneys have HR interests foremost in their minds when they give opinions and advice. Your job is to take care of HR. Their job is to try to keep the company out of court and its leaders out of jail. And sometimes your job and their job will conflict. If the stakes are high enough--or important enough--battling it out in a courtroom wouldn’t necessarily be the worst thing in the world.

    But it rarely comes to that. Usually it’s just small stuff. The "safe" approach here. The "wise" approach there. Prudence rules. But HR and your people may suffer the consequences if HR always takes the safe approach and doesn’t take a risk and make a stand for what’s right now and then. Doing the right thing for your employees is often more important than protecting the company against some vague potential for trouble.

The cost of latex gloves
    In late 2001, when anthrax was frightening mailroom workers around the country, I happened to hear a lawyer advising a group of Bay Area HR executives. Their top concern of the evening was their legal exposure in the face of terrorism. And rightly so. One of the executives said that he worked in a manufacturing facility that wasn’t highly visible the way the media companies that had been hit with anthrax were. Therefore, he felt it was highly unlikely that his company would be a target for terrorism.

    But that day his mailroom clerks had asked if they could have latex gloves and masks to handle the mail. The low point of the presentation was when this attorney flatly and authoritatively said, "You don’t have to give mailroom employees latex gloves just because they think they want them. There’s no law that requires you to do this."

    He may have been legally correct (although I do believe that employees have the legal right to feel safe and secure in their workplace). But he was answering the wrong question. The HR audience member had asked him whether or not to give out latex gloves to employees. The spirit behind the question was: "What steps can we take to take care of our employees legally and morally? And, if we give them the gloves, are we setting ourselves up if, God forbid, something really happened?" He wanted to protect his employer and his employees at the same time. The question the attorney was really answering was, "How do we keep ourselves from getting sued?"

    This piece of advice was meant to be reassuring to the gathering. But the result may have been that all these people went back to work the next day and said to their petrified mailroom staff, "Sorry, no can do. Lawyer says no."

    How much does a box of latex gloves cost? Whatever the price is in your neighborhood, it’s a bargain compared with the price you pay when you lose the loyalty and respect of your employees, who want to work for a company that values their well-being--especially while on the job.

    A few days later, working closely with our administrative manager, I visited our mailroom. We supplied our people with protective gear and a Plexiglas and rubber-gloved box for opening suspicious mail. We added a small premium to their hourly rate as hazardous duty pay because overnight their jobs had become different, more complex, and more difficult. It was a small cost for Yahoo!, but it meant a great deal to these employees. And it was the right thing to do.

    HR is bound on all sides by rules and laws. And, yes, you certainly need to be regarded by the leadership as a trusted partner in keeping the company on the right side of legalities. However, I would like to add this: Break as many rules as you can. As long as your plans don’t violate employment or labor laws, SEC or FDA rulings, or any other legal restrictions, bend and break the rules wherever you feel that a fundamental HR value or principle is at stake. If your HR principle is to make sure that your employees can feel reasonably secure while they’re handling miscellaneous envelopes, buy the box of latex gloves, already!

Attorneys can be wrong
    Develop the habit of questioning authority of all kinds. And you might as well start with your employment lawyers. Remember, their job is to protect you from lawsuits, not to support you while you create a dynamic, alive HR function.

    There will always be people who will tell you that you can’t or shouldn’t do something. If you’re not equipped with a prestigious law degree, you might think it’s prudent to believe them. You might, for instance, believe the attorney who tells you that it’s illegal to hire for anything other than skills. That’s not true at all. It’s illegal to discriminate against people because of their age (if they’re over forty), race, nationality, and so on. And somewhere along the line, attorneys found that a useful rule of thumb is to emphasize performance, experience and skills.

    By training HR to look only at those attributes, the legal department can protect recruiters from violating truly meaningful civil rights laws. But there is no civil rights law that gathers jerks and misfits into a protected class. Still, we hire jerks and misfits because attorneys tell us we can look only for performance, experience, and skills.

    In human resources, we have far more creative leeway in the way we run our operations than we’re in the habit of exploring. There usually is a far better way of doing something than the established rules would have us believe. It will probably come as no surprise that I learned this lesson very well at Southwest. Herb Kelleher made it his personal mission not to do anything by the book, and he is a lawyer. And I saw firsthand--especially in the compensation arena--how his maverick style opened up the potential for truly spectacular results.

    When I first beheld the Southwest compensation plan, I couldn’t believe my eyes. I noticed that many non-airline-specific jobs were paying 20 percent or even more below the market rate. I wondered, "Why would these people want to work here?" According to the "official rules" I had learned in an American Compensation Association (now WorldatWork) certification course, if an employer is below the 15 percent differential, it is in serious jeopardy of losing its talent. That was the rule. But here I saw a value override the rule: the value of the intangibles that made working at Southwest so attractive that the company could defy the accepted way of doing things.

    Employees were saying through their commitment (even at lower pay), "I love my job, I love my coworkers, I love what I’m doing. I’m willing to make less because I see the future in this company." Those employees could have done 20 percent better somewhere else, but guess what? They could also have been laid off after September 11, as hundreds of thousands of their counterparts at other airlines were. At Southwest, they weren’t.

A lobster is not a dog
    Strict overemphasis on rules can also discourage employees from thinking independently and making the best decisions for their customers. Even at relatively freewheeling companies like Southwest, employees may take certain rules and regulations to extremes.

    One of Southwest’s most rigid rules, for instance, is that it does not carry live animals (except for service animals, such as guide dogs and search-and-rescue dogs). The airline’s business model depends on twenty-minute turnarounds at the gate, and that poses too much of a danger to animals, who require safe, careful, and therefore slow handling. The airline is full of pet-loving employees, and no one wants to face the prospect of a passenger’s pet being lost--or worse--in transit. This rule is an easy one to enforce. And it’s so cut and dried that who would have thought it was subject to original thinking? Until one day...

    If you’ve ever flown out of any of the coastal New England cities, you’re familiar with those shops selling live lobsters in cardboard cartons. Animal. Live. No live animals. Right? That’s what our gate agent concluded when someone wanted to check his lobster: No lobsters allowed. The hapless passenger had to leave his dinner behind!

    We didn’t fire the gate agent for being so rigidly attached to the rules. But the airline has been using this story ever since as an illustration of how common sense can tell you to break the rules.

    Can you teach people good judgment? Probably not. Once they’re adults, they pretty much have their judgment skills in place. But what you can do is cultivate a workplace culture in which it’s safe to use independent judgment. Start with yourself and then extend the principle throughout the organization, especially to your customer service representatives. They’re your link to your buying public.

    And the next time you observe a lawyer rigidly sticking to a stupid rule (as opposed to a law--let’s be clear about that), send him or her a lobster dinner and a copy of this book with this chapter explicitly marked.

Excerpted from HR from the Heart, Inspiring Stories and Strategies for Building the People Side of Great Business by Libby Sartain with Martha Finney. Copyright ©2003 Libby Sartain and Martha Finney. Published byAMACOM books, a division of American Management Association, New York, NY. Used with permission. All rights reserved.

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