HR That Works Blog

By now you may have heard that the California Supreme Court finally decided the Brinker case, ruling in favor of employers. It concluded that an employer’s obligation is to relieve its employees of all duty, with the employee thereafter at liberty to use their rest or meal period for whatever purpose he or she desires. The employer need not ensure that no work is done. Thankfully for California employers the court ruled that you can treat employees like the adults they are supposed to be! Here’s the bottom line to a decision that took much too long to come to such a commonsense conclusion:

1. You have to offer rest and meal breaks.
2. It’s up to employees to take them.
3. Your managers can’t dissuade employees from taking their breaks.
4. If they can’t take the break, you pay a one-hour penalty.

Much of the case had to do with the class action certification process, which is only of interest to the lawyers. Of course, if it’s to be a class action, the issue is whether common or individual questions predominate and that question often depends on a resolution of issues closely tied to the merits. Here are some quotes from the Brinker decision that apply to rest and meal period:

• “To earn the first ten-minute break, one must be scheduled for a work shift of at least three and one-half hours, while to earn the next ten minutes, one must be scheduled to work four hours plus a major fraction to earn the next ten, eight hours plus a major fraction, and so on.” So, employees are entitled to ten-minute rests for shifts from 3.5-6 hours in length, 20 minutes for shifts of 6 hours up to 10 hours, and 30 minutes for shifts of 10 hours up to 14 hours, and so on.
• “As a general matter, one rest break should fall on either side of the meal break.”
• “The meal period requirement is satisfied if the employee: 1) has at least 30 minutes uninterrupted, 2) is free to leave the premises, and 3) is relieved of all duty for the entire period. Again, the employee must be relieved of any duty or employer control and are free to come and go as they please. It is not the employer’s obligation to ensure that no work is being done.
• “When someone is employed for 5 hours, an employer is put to a choice: 1) it must afford an off-duty meal period; 2) consent to a mutually-agreed upon waiver if one-hour or less will end the shift; or 3) obtain written agreement to an on-duty meal period if circumstances permit. Failure to do one of these will render the employer liable for premium pay. If work does continue, the employer will not be liable for premium paid. At most, it will be liable for straight pay, and then only when it ‘knew or reasonably should have known’ that the worker was working through the authorized meal period.”
• “Proof of an employee’s working through a meal period will not alone subject the employer to liability of premium pay. Employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability. On the other hand, an employer may not undermine a formal policy providing meal breaks by pressuring employees to perform their duties in ways that omit breaks. For example, common scheduling policies that make taking breaks extremely difficult or creating incentives to forgo or otherwise skipping breaks. “
• “The first meal period must start after no more than five hours. A second meal period is only required after ten hours of work.”

In the case, the plaintiff also contended that Brinker required employees to perform work while clocked out and that meal break records were altered to conceal time working during those periods.

Additional notes: Remember that all meal periods are required to be recorded. Rest periods are not so required. Think about this twist: It can be argued that those employees who worked through their meal breaks and thereby out-produced their peers, are doing so voluntarily with a desire to be promoted. If in fact they are promoted ahead of their peers, their peers can then argue that you basically discouraged them from taking meal breaks and violated the law.

In response to a District Court decision issued late Monday, the National Labor Relations Board has temporarily suspended the implementation of changes to its representation case process, which had taken effect April 30.

Board Chairman Mark Gaston Pearce said the Board is reviewing the court decision and considering its response. “We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” he said. “We are determined to move forward.”

Acting General Counsel Lafe Solomon today withdrew the guidance to regional offices he issued prior to the effective date and advised regional directors to revert to their previous practices for election petitions starting today.

About 150 election petitions were filed under the new procedures. Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.

Click here for website version.

The above entry is the May 15, 2012 NLRB News Release.

On April 25, 2012, the EEOC issued updated Enforcement Guidance regarding an employer’s use of arrest and conviction records in making employment decisions. The agency also issued a Question and Answer (Q&A) document that helps explain the Guidance.

According to the EEOC, a policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law. The Enforcement Guidance explains how the EEOC analyzes the “job related and consistent with business necessity” standard for adverse employment hiring decisions based on criminal records, and provides hypothetical examples interpreting the standard.

Arrests and convictions are treated differently for purposes of Title VII, since the fact of an arrest does not establish that criminal conduct has occurred. The EEOC acknowledges that an arrest may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. The Guidance notes, “[a]lthough an arrest standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.”

In examining whether an employer’s policy of screening individuals based on criminal convictions violates Title VII, the EEOC will look to see whether the employer’s policy provides an opportunity for an individualized assessment for those people identified by the screen in order to determine if the policy as applied is job related and consistent with business necessity. Under the new enforcement rules, the following should be considered by an employer when screening based on criminal convictions:

• The Nature and Gravity of the Offense or Conduct. The Guidance notes: “Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss). … With respect to the gravity of the crime, offenses identified as misdemeanors may be less severe than those identified as felonies.”

• The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence. The Guidance points out that the amount of time that had passed since the applicant’s criminal conduct occurred is probative of the risk he poses in the position in question. For example, the Guidance notes that the risk of recidivism may decline over a certain period of time.

• The Nature of the Job Held or Sought. Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used.”

The Guidance also lists examples of employer best practices for considering criminal records in connection with employment decisions. Among other examples, the Guidance advises employers to (1) develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct, (2) identify essential job requirements and the actual circumstances under which the jobs are performed, (3) determine the specific offenses that may demonstrate unfitness for performing such jobs, (4) determine the duration of exclusions for criminal conduct based on all available evidence, and (5) record the justification for the policy and procedures.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

April 30, 2012 was the effective date for the new National Labor Relations Board rules governing representational elections. All NLRB election petitions filed starting today will be subject to these new rules. In advance of the rules, the NLRB’s General Counsel’s office released a guidance memorandum last week clarifying several of the rules. The highlights of this memo include:

• On the day an election petition is filed, a notice of hearing will be issued and a pre-election hearing will be scheduled within 7 days or 5 working days.
• Regional Directors are encouraged to narrow the issues at a pre-election hearing and conduct a pre-hearing conference, if necessary.
• The new rules provide that “disputes concerning individuals’ eligibility to vote or inclusion in appropriate unit “ordinarily” need not be litigated or resolved before an election. In his memo, the General Counsel said that eligibility to vote issues should only be litigated at a pre-election hearing if 10 percent or more of the unit is in dispute.
• When deciding voter eligibility issues, the hearing officer is expected to apply the Board’s Specialty Healthcare framework. As we discussed in our Specialty Healthcare Watch blog posts on February 13th and February 14th, the Board will first look to see if the unit proposed by the Union is a “readily identifiable group” and shares a community-of-interest. If so, then the unit is valid and the employer must establish that additional employees it seeks to include share an “overwhelming community of interest.”
• Disputes over whether an employee is a supervisor will not be considered at the pre-election hearing, if the employees in dispute constitute less than 10 percent of the voting unit.
• The hearing officer retains discretion on whether post-hearing briefs will be filed. When post-hearing briefs are not allowed, the parties will be allowed time at the hearing to make an oral argument or submit a brief as an exhibit.
• At the hearing, the officer should ask the parties entitled to receive a voter eligibility list (Excelsior list) if they wish to waive all or any part of the 10-day period they are entitled to have the list.
• Pre-election appeals of hearing officer and regional director decisions will only be granted in “extraordinary circumstances.” For most intents and purposes, neither side will have meaningful review of a hearing before an election.
• Post-election appeals are also more limited. Post-election exceptions and requests for review will now filed directly with the Regional Director, not the NLRB. The Board may grant or deny requests for review of Regional Director decisions, but a denial should be treated as a summary affirmance of the actions of the Regional Director.

Right now, the Labor Board uses a 42-day timeframe from the filing of a petition to an election. The new rules and GC memo do not specifically establish a new timeframe. However, given the changes outlined above, the 42-day period will be shortened. The precise amount of time will depend on whether 10 percent of the possible eligible voters are in dispute, thus necessitating a more complex pre-election hearing, and if the Union waives its right to the voter eligibility list for the 10-day period. A fair estimate is that the election period could be as little as 28 to 30 days with these changes. This means that employers will have fewer opportunities to communicate with employees about the pros and cons of unionization once a petition is filed, thus making it even more important that employers plan now a proactive strategy now that addresses unionization.

A court challenge to the new rules is still pending in federal court. We will inform you of that ruling when it is decided.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

The Equal Employment Opportunity Commission recently issued an opinion concluding that under Title VII, employees may bring discrimination claims based on their transgendered status or gender identity.

Mia Macy was a male police detective in Phoenix, Arizona.  In 2010, Macy decided to relocate to San Francisco and pursue a position with the Bureau of Alcohol, Tobacco, Firearms, and Explosives.  After the interview process, a local director for the Bureau informed Macy that she would be able to fill the position provided that she passed a background check.  While her background check was pending, Macy informed the third-party contractor responsible for filling the position that she was in the process of transitioning from male to female.  The contractor relayed this information to the Bureau.  Five days later, the Bureau notified Macy that the position had been cut due to budget restrictions.  An EEO counselor at the Bureau, however, told Macy that another applicant had been hired for the position because that individual was farther along in the background investigation process.  Macy filed a discrimination charge against the Bureau, alleging sex discrimination, and discrimination on the basis of gender identity (as a transgender woman) and sex stereotyping.  When only her sex discrimination claim was accepted, however, Macy appealed.

The Commission reversed the decision, concluding that discrimination claims based on transgender status or gender identity are covered under Title VII.  The Commission based its conclusion principally upon the United States Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and subsequent decisions by federal courts.  In Price Waterhouse, the Supreme Court held that discrimination on the basis of gender stereotype (e.g., a woman denied partnership in a company because she was too “macho” and not “feminine” enough) is sex-based discrimination prohibited under Title VII.  Several United States Circuit Courts of Appeals have subsequently held that under this holding, Title VII bars “not just discrimination because of biological sex, but also gender stereotyping—failing to act and appear according to expectations defined by gender.”  Following this approach, the Commission reasoned that when an employer discriminates against someone because the person is transgender, the disparate treatment is “related to the sex of the victim.”  According to the Commission, this includes a person allegedly discriminated against for expressing his or her gender in a non-stereotypical fashion, and a person allegedly discriminated against because an employer is uncomfortable with or dislikes the fact that he or she has or is transitioning from one gender to another.

Going forward, employers should assume that the Commission’s opinion is legally correct.  While the Supreme Court has not specifically addressed whether transgender or gender identity discrimination claims are covered under Title VII, many lower courts have held that this is a protected class.  Therefore, given the current trend in federal courts to recognize the validity of such claims, the Commission’s opinion will certainly bolster an employee’s ability to bring gender identity and transgender discrimination claims under Title VII.

Article written by Josh Meeuwse and provided courtesy of Worklaw Network firm Franczek Radelet (www.franczek.com)>

In 2009 the US Supreme Court pretty much cut out “mixed-motive” cases in the age arena. Meaning you now have to show that “but for” age discrimination you would have suffered that loss of job, etc. If there is any legit reason for your termination then you lose. In response to this ruling the legislatures are busy trying to work their way around it and the EEOC has updated its regulations as follows (underlining mine):

§ 1625.7   Differentiations based on reasonable factors other than age (RFOA).

(b) When an employment practice uses age as a limiting criterion, the defense that the practice is justified by a reasonable factor other than age is unavailable.

(c) Any employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a “reasonable factor other than age.” An individual challenging the allegedly unlawful practice is responsible for isolating and identifying the specific employment practice that allegedly causes any observed statistical disparities.

(d) Whenever the “reasonable factors other than age” defense is raised, the employer bears the burdens of production and persuasion to demonstrate the defense. The “reasonable factors other than age” provision is not available as a defense to a claim of disparate treatment. (Meaning individual harassment, discrimination, etc.)

(e)     (1) A reasonable factor other than age is a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances. Whether a differentiation is based on reasonable factors other than age must be decided on the basis of all the particular facts and circumstances surrounding each individual situation. To establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.

(2) Considerations that are relevant to whether a practice is based on a reasonable factor other than age include, but are not limited to:

(i) The extent to which the factor is related to the employer’s stated business purpose;

(ii) The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;

(iii) The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;

(iv) The extent to which the employer assessed the adverse impact of its employment practice on older workers; and

(v) The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

(3) No specific consideration or combination of considerations need be present for a differentiation to be based on reasonable factors other than age. Nor does the presence of one of these considerations automatically establish the defense.

Word to the wise: Make sure you can fit any promotion, termination, or layoff type decision into the guidelines set forth above.

“Stay current on your HR game. Just when you think you are winning the rat race, along comes faster rats.” —Alan Collins, Author, Unwritten HR Rules

This issue discusses:

• Editor’s Column: Four Big Questions
• What Employment Lawyers Are Learning
• New ADEA Regulations Focus on ‘Reasonable Factors Other Than Age’ Defense
• Who Owns Employees’ Social Media Accounts?
• HR: Getting Paid
• Temporary Workers, Temporary Risks
• Training Alone Doesn’t Meet FLSA ‘Learned Professional’ Exemption
• What’s the Verdict on Your Wellness Plan?

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Four Big Questions

During a recent webinar, I asked four polling questions. The responses reveal a lot about what’s going on at companies today.

1. Do you conduct traditional performance appraisals?
75% Yes / 25% No

Let me begin by saying I’m not a big fan of traditional performance appraisals. I believe that most companies continue to do them because they can’t think of an alternative. I have dug into performance management over the years and I agree with Dr. Deming, who stated that performance evaluations are more destructive to performance than beneficial. From a former trial lawyer’s perspective, they do little to protect a company when it comes to wrongful termination claims. Why don’t they work?

• Nobody likes to give them or likes to get them.
• All anybody really wants to know is if they’re getting a raise.
• If somebody gets a poor performance rating, it’s probably a management problem and not an employee problem.
• They’re too late — like telling a kid in December that they didn’t clean up their room in February.
• They’re never done honestly. Managers tend to slide to the comfortable middle or use evaluations as a tool of retribution and manipulation.
• Most importantly, they don’t improve performance. When I’ve surveyed employees and conducted focus groups, I’ve been told that what does improve performance is the dialogue entered into with the manager during the process. As I have preached, this dialogue should be an ongoing process and not a once a year event. Employees should know where they stand at all times.

What should you do instead? Start by making it a workshop for your entire company. What do the employees like about your current performance management process? What don’t they like? What would they like to see done instead? How can you present the performance management approach as something created through agreement?

Then make sure your process can answer the two most important questions of performance management:

• What are the most important things we do every day?(you’d be amazed at the variance in answers to that question)
• How do we know if we’re doing our jobs well without having to ask or without having to be told? (because we understand the benchmarks of quality so well)

Until you can ask these questions, circling 1 to 5 on some form is a waste of time.

I encourage all HR That Works members to watch the Performance Management Training Module video, as well as the ROWE (Results Only Work Environment) Webinar and others on performance management on the site. Please also look at the performance management personnel forms.

2. Is there anyone working at the company today who if they quit you would be relieved, as opposed to upset?
71% Yes / 29% No

This response doesn’t surprise me. I’ve asked this question in workshops hundreds of times. I always get a painful smile as an answer. So why are these people still at the company? Here are some possibilities:

• They’re related to ownership — the problem with nepotism.
• They’ve been there so long that ownership feels guilty about terminating them. The company is also afraid of age discrimination-type claims.
• Ownership or management might have formed a personal relationship with this person. Perhaps their families know each other. How can I fire Bob when we’ve been friends for 10 years?
• We’re afraid that the standard operating procedure will walk out the door with the employee. If we haven’t generated standard operating procedures and best practices then their intellectual capital leaves with this employee, even if they’re a poor one. This is one reason why it’s so important to build and document standard operating procedures as if you were trying to franchise your business.
• We fail to document their poor performance. This is one reason why lawyers tell employers to “document, document, document!” Make sure you train your management team on proper disciplinary and documentation procedures. To do this, see the Discipline and Termination Training Module on HR That Works.
• We don’t want be viewed as a bad person — nobody likes being a villain. We know that this person will be upset with us. We know they’re going to try to get other people upset with us. Heck, we might even be upset with ourselves, too.

Jack Welch famously cut out the bottom 10% of employees at GE every year while driving it to become the No. 1 company in its industry. He said it wasn’t being unkind to the 10%, but being kind to the other 90%. There’s wisdom in culling the herd, and any emotional baggage has to get out of the way if we want be a great company.

3. Do you have a written human resource plan for 2012?
64% No / 36% Yes

Chances are that your company has an overall business plan and, hopefully a sales and marketing plan as well. You might even have a plan for process improvement, etc. Why doesn’t the No. 1 line item at every company have a plan attached to it?

Understand this: If roughly two in three companies don’t plan HR practices then they’re putting themselves at a competitive disadvantage to the one in three who do! Who do you think will hire more effectively? Who do you think will have a higher employee retention rate? Who do you think will be the more productive workforce? Who do you think will conduct more training? Who do you think will get rid of dead weight more readily? Who will do a better job of limiting employment-related lawsuits?

So what’s stopping anybody? My answer: A misallocation of time and money. Having just completed the 2012 HR That Works survey, I can tell you that time is the overriding issue in this area. HR is an incredible opportunity that’s undervalued because we are stressed about our time. However, what we all know is that time and money aren’t true objections; they’re an allocation of resources. We tend to allocate our time and money where we get the highest return on investment. If you have any doubt about the return on investment of HR, then go through the HR That Works Cost Calculator.

4. Do you require employee suggestions?
67% No / 33% Yes

Imagine that. Two-thirds of companies not systemically tapping into the brilliance of their workforce! How many companies do you know with voluntary employee suggestion systems that work?

In my experience, none. Many years ago, Peter Drucker had lunch with a good friend of his, Martin Edelstein (the editor of Boardroom Classics). He asked Martin how his meetings were going. Martin answered, “Just like everybody’s meetings go.” Peter asked him if he requires his employees to provide suggestions at every meeting. His answer was, of course, “no.” Drucker suggested that he do so for his next meeting. That single suggestion changed the entire culture and business of Boardroom Classics to the point that they produced an excellent book and program called I-Power about it. We had them present a Webinar for us that is available to all HR That Works Members.

Dr. Deming taught that as a part of Total Quality Management, you need to have quality control circles that engage in what’s known as kaizen, or constant improvement. This suggestion revolutionized manufacturing worldwide. He also recommended that manufacturers build toward perfection, rather than toward a tolerance. This is one reason why Lexus brands itself as the “Relentless Pursuit of Perfection.”

Are you motivated to great HR practices? How long will it be until you start doing mandatory employee suggestions? Remember, none of us are as smart as all of us!

Conclusion
These four huge HR questions are related directly to the success of any business. They represent a competitive advantage and a provable ROI.

What Employment Lawyers Are Learning

Here’s a partial list of training topics available this year for California employment law attorneys. This list, which applies in every state, should give businesses fair warning about some types of litigation they might face:

• RIFS — How to Do It Right
• Insider Tips and Tactics — The Art of Taking a Killer Employment Deposition
• The NLRB: What Every Labor and Employment Lawyer Needs to Know
• Use of Liability Experts in Harassment Litigation
• Managing Leaves: A Practical Guide for Employers and Employees
• Wage & Hour Class Action Update
• Ground Zero: An Expert Approach to Interviewing Techniques
• Data Privacy: The New Frontier
• Tracking Them Down: Techniques for Finding Witnesses, Former Employees and Other Information
• Using Digital Evidence in Workplace Investigations
• The “New Hire” — Independent Contractor or Employee?
• ADR: Issues and Trends
• Litigating Harassment Cases: On the Job Harassment Because of Sex, Race or Other Protected Characteristics
• Wage & Hour Class Actions after AT&T Mobility v. Concepcion

Bear in mind that these are only a few potential sources of litigation.

New ADEA Regulations Focus on ‘Reasonable Factors Other Than Age’ Defense

In Smith v. City of Jackson, the U.S. Supreme Court found that the ADEA authorizes recovery in disparate-impact cases, but also decided that there’s no such liability when the impact is due to reasonable factors other than age. Thus, “reasonable factors other than age” can provide an important defense in an ADEA action. For several years, the EEOC has proposed rules and collected comments on regulations clarifying this defense. On March 31, 2012, the EEOC published its final Rule on the “reasonable factors other than age” defense.

The final Rule provides that a reasonable factor other than age is one that “is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances.” Whether a non-age factor is the reason for differential treatment “depends on the basis of all the particular facts and circumstances surrounding each individual situation.” To prevail, the employer has the burden of persuasion and “must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known.”

Employers should note a non-exhaustive list of considerations set forth in the Rule itself that can be taken into consideration to determine if the employment decision was based on a reasonable factor other than age. These considerations include:

• The extent to which the factor is related to the employer’s stated business purpose.
• The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination.
• The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes.
• The extent to which the employer assessed the adverse impact of its employment practice on older workers.
• The degree of harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

The Rule clarifies, however, that the “reasonable factors” are not required elements, but rather, only “manifestly relevant to determining whether an employer demonstrates the RFOA defense.”

The final Rule takes effect on April 30, 2012.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

Who Owns Employees’ Social Media Accounts?

There is a new type of lawsuit in town: Employers and employees are fighting over ownership of Twitter handles, LinkedIn connections, Facebook pages, and more. In one case, a company sued, claiming that an executive’s Twitter followers belonged to the business and had a value of $2.50 each (for a total of $340,000). Similar lawsuits focus on the ownership of Facebook and LinkedIn accounts. Whose property are the followers and connections that employees create in the course of their employment? To what extent can non-competition or non-solicitation agreements prevent these former employees from announcing their departures and then inviting their followers and connections to move to a new account?

Another sticky wicket for employers involves former employees who have received glowing recommendations from managers, vendors, and others, which they will use against their former employers in litigation or to compete against them.

To minimize your exposure, I would recommend adding this language to your social media policy (we have added this language to the Sample Social Media Policy on HR That Works):

“Ownership of Social Media Accounts
“Any social media accounts created or supported by the company are the property of the company (“Company Account”). If an employee wants their own private accounts for non-work related reasons, then they should maintain it separately from the Company Account. Employee understands that at time of termination that any Company Account remains the proprietary property of the company, and that other company policies or agreements apply, including any of those related to trade secrets, non-competition, or non-solicitation where allowed by law. Employee agrees to provide access during and after employment for the account passwords of any Company Account social media site(s).”

HR: Getting Paid

The Society for Human Resources Management (SHRM) has issued its summary of pay for common HR positions by company size. Because the vast majority of HR That Works member companies have fewer than 1,000 employees, I can tell you that the average full-time HR executive at these businesses make between $74,500 and $131,300. Approximately two-thirds of them are eligible for long-term incentives, and 95% of them for short-term incentives. These incentives should increase their payout by about one-third. Here’s the point: Many small and medium-sized companies pay their HR managers well. In case you’re curious, the top-end compensation for HR executives at companies with 10,000 or more employees averages $450,000, with additional incentive payouts of approximately 50%! For those who take HR seriously — there’s good money in HR!

Temporary Workers, Temporary Risks

An article in the February edition of the Corporate Counsel, reviews the potential liabilities of working with temporary workers. According to the article, in July, August, and September of 2011 alone, businesses hired 53,000 new temporary workers. The article identifies five risks in hiring temps:

1. Liability as a joint employer for numerous exposures, including wage and hour, discrimination and harassment, FMLA, ADA, and others.
2. Entitlement of temporary employees to benefits (understanding employee eligibility is the key).
3. Failure to provide temporary employees with reasonable accommodation.
4. Returning a temporary employee to work after FMLA leave.
5. Unsuccessful attempts to organize a bargaining unit that includes both regular employees and temps.

Every HR executive should read this well-written article. HR That Works Members should look at the Special Report on the Contingent Workforce, which includes a comprehensive checklist.

Training Alone Doesn’t Meet FLSA ‘Learned Professional’ Exemption

In the Ninth Circuit case, Solis v. the State of Washington, the U.S. Secretary of Labor filed a complaint against the Washington Department of Social and Health Services, alleging that the department failed to pay overtime to social workers. The DHS argument that these workers fell within the learned professional exemption failed because the degree requirements for social worker positions did not “plainly and unmistakably” include a specialized course of study related directly to these positions. The learned professional exemption applies to positions that require a “prolonged course of specialized instruction.” According to the court, if simply having extensive training sufficed to qualify as a specialized course of intellectual instruction, nearly every position with a formal training program would qualify. Businesses should construe these exemptions narrowly and the employer has the burden of showing the exemption applies.

See the FLSA Fact Sheet here.

What’s the Verdict on Your Wellness Plan?

Wellness plans have been all the rage for a number of years. Their ultimate goal is to reduce employer costs, while creating a more productive workforce. Otherwise, employers would have no interest in them. So how well are they doing? My personal experience working with many companies that either use or implement these programs tells me that it’s a mixed bag. Attempting to change long-standing health habits isn’t easy. Here are some of the challenges as I see them:

1. It’s a top-down idea. Anytime a wellness program is thrust upon employees it feels like manipulation, whether the program benefits them or not. How can you make it their idea, too?
2. Many employees don’t like being penalized for their personal habits, while their work habits are just fine. “I put in 50 hours a week, produce twice as much as anybody around here, and you’re going to make me pay more because I smoke a few cigarettes?” Tough case.
3. Penalties only generate more stress. There’s talk about expanding the types of penalties available under wellness programs. Now people will be stressed about their finances, as well as about their health. Rather than giving employees incentives toward good conduct, it might lead them into even more destructive conduct.
4. Leadership sets a bad example. An owner once complained to me about how expensive his healthcare was. An obese man, he then took me past the free vending machines in the lunchroom that provide his employees with candy, chips, and soda. How well do you think a wellness program will work at his company?
5. Make it a team effort. Healthy employees are, on average, better employees. They’re more productive, have lower absenteeism rates, and fewer medical expenses. Aren’t these the type of workers you want? Encourage them to provide an example to the rest of the workforce. Less fit workers will respond far better to someone they work with every day than they will to some wellness trainer. Give healthy employees incentives to get three other employees to go to the gym with them on a regular basis. There’s no law against doing that.

Wellness is a great idea whose implementation is still at the early phases. To make our wellness programs more effective, we’ll need to do a lot of experiments.

Form of the Month

Privacy Checklist (PDF) – Workplace privacy is a growing employer concern. While this list is not meant to be exhaustive, nor cover every regulation, it will help you to avoid the vast majority of claims filed in this area.

Podcast

Click here to to listen to this month’s newsletter podcast.

Today, the Equal Employment Opportunity Commission (EEOC) released the first updates in nearly 25 years to its guidelines on when and how employers may inquire into an applicant’s arrest and conviction history.  According to the EEOC, the new Guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.  Our preliminary analysis confirms that the Guidelines do not appear to represent a fundamental shift in the EEOC’s positions, but rather summarize pre-existing guidelines and principles based on applicable case law and available demographic research.

The EEOC’s Updated Guidance

No federal law explicitly prohibits employers from so inquiring into an applicant’s past criminal history, however, court decisions and EEOC guidelines have previously recognized that, in some cases, disqualifying an applicant because of an arrest or conviction record could violate the Civil Rights Act of 1964, as amended (Title VII), which prohibits employment discrimination based upon race, color, religion, sex and national origin.  The updated Guidance notes that the use of criminal history may violate Title VII in one of two ways.  First, Title VII may be violated when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (i.e., disparate treatment liability).  Second, a violation may occur where an employer’s facially neutral policy of excluding applicants from employment based on criminal history disproportionately impacts African American and/or Hispanic applicants and is not job related and consistent with business necessity (i.e., disparate impact liability).

The Guidance distinguishes between the use of arrest and conviction records. According to the EEOC, an employer’s reliance on an arrest record in and of itself is not job related and consistent with business necessity because the fact of an arrest does not establish that criminal conduct has occurred.  However, an employer may make an employment decision based on the conduct underlying an arrest if that conduct makes the individual unfit for the position in question.  The EEOC further recognizes that a conviction record in most cases will usually serve as sufficient evidence that an individual engaged in particular conduct, but notes that in certain circumstances there may be reasons why an employer should not rely on a conviction record alone.

The Guidance cites to nationwide statistical data showing that African American and Hispanic individuals are arrested and convicted at a rate 2 to 3 times their proportion of the general population and states that this nationwide data provides a basis for EEOC to investigate an employer’s use of criminal records.  During an investigation, the EEOC will look to whether the particular employer’s use of criminal history has a statistically significant disparate impact on any protected group.

Once a disproportionate impact is shown, the employer may only avoid liability if it can show that the reliance on criminal history is job related and consistent with business necessity.  The revised Guidance sets out two circumstances in which the EEOC believes employers will consistently meet this defense:

1. The employer validates the criminal conduct exclusion for the position in question under the EEOC Uniform Guidelines on Employee Selection Procedures; or

2. The employer develops a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job.  The employer’s policy must also provide an opportunity for an individualized assessment of those people identified by the screen to determine if the policy as applied is job related and consistent with business necessity.

As to the first defense, the Guidance recognizes that in most cases this will not be a viable option because of the lack of currently available studies that could provide a framework for formal validation.  For the second defense, the Guidance notes that while an “individualized assessment” is not required under Title VII under all circumstances, the lack of an individualized assessment is more likely to result in a violation.

Best Practices Identified by the EEOC

The Guidance provides several examples of best practices for employers who consider criminal record information when making employment decisions (beyond a recommendation for more training).  In general, the EEOC advises employers to eliminate policies or practices that “exclude people from employment based on any criminal record” and to replace them with “narrowly tailored” policies that provide for targeted, individualized screening of specific offenses based on a job’s essential requirements and actual duties.  The Commission also recommends that employers keep a record of the justifications and research that supports those policies.  Finally, the EEOC suggests that when asking questions about criminal records employers should limit their inquiries to records for which an exclusion would be job related for the position in question and consistent with business necessity.

Conclusion

Background checks remain fraught with potential pitfalls for employers.  However, employers should not let those hazards stop them from performing proper due diligence on potential employees, provided that they do so in a targeted and individualized manner that relies only on criminal history in a manner that is consistent with the EEOC Guidance.  We will be providing clients with more detailed guidance and training opportunities in the coming weeks on this important update of the EEOC’s views on the use of criminal history records in hiring.

Article written by attorneys Doug Hass and Mike Warner and provided courtesy of Worklaw® Network firm Franczek Radelet.

Forecasters predict that the amount of information companies have to manage will quadruple in the next ten years. Data management and security protocols are a growing risk management concern. Companies need to protect proprietary and confidential information including everything from their latest designs, internal communications, client data, marketing strategies, financial information, and the list goes on. Fact is, every aspect of your operations has information and data attached to it that competitors or worse would love to have access to. What can and should a company do to help manage this ever growing risk?

1. Make sure you have cyber-liability and other insurance coverages to cover against these losses.
2. Do a complete assessment of the most important risks. Not all are weighed equally. Make sure there is someone fully responsible for managing each one of those risks.
3. Make sure you know where the information flows and who has access to it. Chances are, your employees have access to more information than they need to.
4. Have protocols surrounding all information devices including servers, desktops, laptops, and mobile devices, video conferencing, online chats, and social media platforms.
5. Train your employees on the risk associated with not properly managing this information or data.
6. Hire a third party service to check your vulnerabilities.
7. Employ today’s technologies to help better manage data. For example, Symantec and Web Sense are the leaders in data loss prevention. Their software is often used to prevent social security and credit card numbers from leaving a company.
8. Have protocols around the use of social media. HR That Works members should take a look at the Social Media Training Module and related tools.
9. Have clear protocols about people who are telecommuting to work or are third-party vendors.
10. Make sure how you manage the departure of terminated or defected employees. Of course, you can have non-compete and confidentiality agreements as well as taking a checklist approach to making sure all equipment, passwords, etc. have been collected. If necessary you can employ counsel to file an injunction against use of any confidential information.
11. Don’t forget about low-tech espionage including dumpster divers and the Xerox machine.

These suggestions are just a start. You should conduct an extensive risk management and technology assessment and there are plenty of vendors willing to help you with that effort.

These are desperate times and more and more employees are doing desperate things. How do you handle it if someone has been arrested before they were hired or even after they were hired? To begin with, the answer to this question varies on a state-by-state basis. That’s one reason why we encourage you to work with companies like our strategic partner, Global HR Research, because they conduct background checks and give you advice based on jurisdictional constraints. In some states it’s a free-for-all, if you decide not to hire someone because they were arrested, that’s OK. In other states, there is a prohibition against not hiring people because they were arrested. In fact, we know of some government contracts that require employers to hire people with an arrest record (only in America).

“Just how bad is it?” is the next question. Assuming work-related arrests are a legitimate reason for not hiring somebody, how bad was the situation? Did they steal something off a delivery truck? Did they swipe confidential data? Did they get busted smoking pot on the job or off the job? As Cicero famously said, let the punishment fit the crime.

Employers also have to be aware of negligent hiring causes of action where an arrest record was overlooked or not even looked into in the first place. For example, in one case I handled years ago, a nursing facility did not conduct background checks because it was so desperate for attendant. As a result, they hired somebody recently released from Folsom Prison for robbery and rape who, in turn, raped and murdered one of the patients. Of course, they were rightfully sued for millions of dollars. This was simply negligence on their part and doing no background checks at all is one of the greatest risk a company faces. Lastly, if the arrest occurs while in your employ, you’re certainly entitled to do your own independent investigation into the situation to determine if it makes sense to keep the employee on board. The recent fiasco at Penn State provides plenty of examples.

Of course, the smartest move to make in a situation like this is to work both with your attorney and, if it’s an executive, your public relations person.