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Document, Document and Document!

Posted By Cindy Hesch, Friday, May 24, 2019

Document, Document and Document!


By: Scott Mara, SHRM-CP, PHR-CA 


HR professionals hear this a lot: “I want to fire John he is not working out I want to term him immediately.” HR then asks the manager why John needs to be terminated and can we see all the documentation that is relevant to John’s performance issues. It is usually at that moment the manager pauses and gives you that look, and we know there is probably no documentation or very little documentation in John’s file to justify a termination. However, that doesn’t stop the manager from wanting to press the termination button. HR is now put into a tough position. I am sure we’ve all been in this situation before at some point in our HR career.


Documenting employee performance and behavior is an important skill that every HR professional should have but more importantly, HR should help promote a culture of documentation within in our organizations. Documentation is the process of creating a written record of an event, process or a situation. It is a way to memorialize things so they can be referred to at a later point in time, like when you are being cross-examined by the Plaintiff’s lawyer three years later explaining why John was terminated. Proper documentation will stand the test of time unlike our memories. The specifics of John’s termination three years later maybe had for you to recall especially if you moved on to another company.


Keeping good documentation will help you stay in compliance; help promote a positive work environment, treat employees fairly, enforce desired work behavior/performance. Some common mistakes people make when documenting employee issues:


·       Waiting too long after the incident.

·       The write-up is too short, vague and too generalized.

·       The manager attacks the employee in the write-up.

·       Manager does not fairly document all employees the same way.

·       The manager does not tie the issue(s) to performance or the appropriate company policy.


So how can you make documenting better? The first thing you need to remember is why are we documenting in the first place, it is because we want to create written record of what happened. Ultimately our documentation may be used in a legal or an administrative proceeding and most likely it will be viewed by outside third parties (lawyers, judges and juries); doing the prep work upfront will save you and your managers a lot of headaches later. Here are a few helpful tips when documenting employee issues:


·       When documenting, be specific and make sure you include all the relevant information to explain what happened. Make sure you link the performance or behavior to company policies and performance standards. Include how the performance and/or behavior impacted the company.

·       Make sure you are concise, clear and detailed in your documentation. Remember this document may be used in court years later.

·       If the employee has had other discipline issues, you can list those in the write-up as well to help illustrate this is an ongoing issue and the employee needs to improve.

·       Explain the consequences if the behavior or poor performance continues.

·       Make sure you are consistent in your write-ups.

·       Include a realistic deadline for improvements and build in proper check points to monitor the employee’s progress.

·       Have the employee acknowledge the write-up if they refused to sign make a note of that, provide a copy to the employee. Always good to have a witness present.

·       Only attach the relevant supporting documentation that is needed to help support the write-up.

·       Have an HR professional review the write-up; if it is a “sticky” matter then have counsel review it as well.

·       Finally make sure the documentation is filed properly and all loops are closed.


Proper documentation should be timely, concise and include all relevant information and linked to the appropriate company policy. Remember what is written now might be that one piece of important evidence down the road. Thanks for reading! I hope you enjoyed. Please note: I am not an attorney, and this is not legal advice. 

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Fourth Circuit Rules That Failure to Properly Address Workplace Gossip Can Give Rise to Employer Liability for Gender Discrimination under Title VII

Posted By Cindy Hesch, Wednesday, April 24, 2019

Fourth Circuit Rules That Failure to Properly Address Workplace Gossip Can Give Rise to Employer Liability for Gender Discrimination under Title VII

By J. Alexander Dattilo, Labor & Employment Attorney at Quarles & Brady

Employers know all too well that workplace gossip can cause numerous problems. And now, their failure to properly handle it can even result in liability under Title VII. The Fourth Circuit Court of Appeals recently held in Parker v. Reema Consulting Servs., Inc., 915 F.3d 297 (4th Cir. 2019) that a female employee adequately alleged a claim for gender discrimination under Title VII, based on her employer’s handling of a rumor that she had obtained promotions by having sex with a male supervisor. The Fourth Circuit concluded that this rumor that she had “slept her way to the top” supported her sex-based hostile work environment claim, as it tapped into sexist stereotypes.

The Case

The plaintiff, Parker, worked for Reema Consulting Services, Inc. (“Reema”) in a warehouse facility in Virginia. In less than two years, she was promoted six times and ultimately rose from “low-level clerk” to Assistant Operations Manager. One of Parker’s male co-workers, Jennings, had started working for Reema at the same time that she did. Jennings started a rumor that Parker had obtained her management position by having sex with a higher-ranking male manager, Pickett. The highest-ranking manager at the facility, Moppins, actually helped to promote this rumor. Moppins once asked Pickett if he was divorcing his wife due to his rumored relationship with Parker. Moppins even discussed the false rumor at a staff meeting. Parker later met privately with Moppins to discuss the rumor, and during this meeting, he blamed her for the rumor’s origination and told her that he would no longer recommend her for promotions because of it.

After Moppins failed to act, Parker complained to Reema’s Human Resources (“HR”) Manager of sexual harassment by Moppins and Jennings. Jennings then complained to this same HR Manager that Parker was creating a hostile work environment “through inappropriate conduct.” The HR Manager instructed Parker to have no contact with Jennings, yet he allowed Jennings to spend time in her work area, where he distracted employees whom she managed and stared, smirked, and laughed at her. Parker also complained about this conduct to the HR Manager, but the HR Manager never addressed it. Days later, Moppins called Parker into a meeting and fired her, allegedly because of insubordination towards him and Jennings’ complaint about her.

Parker filed a lawsuit in the District Court of Maryland, and alleged, among other things, that Reema violated Title VII when it: (1) subjected her to a hostile work environment because of her gender, and (2) retaliated against her for complaining about the rumor. The district court granted Reema’s request for dismissal of both claims. Although the court acknowledged that the workplace rumor about Parker was offensive, it concluded that this rumor was “not…harassment based upon gender,” but rather “based upon false allegations of conduct by her.”

Parker appealed these rulings to the Fourth Circuit Court of Appeals, which reversed the district court’s ruling and revived both of her Title VII claims. The appellate court framed the issue as “whether a false rumor that a female employee slept with her male boss to obtain promotion can ever give rise to her employer’s liability under Title VII for discrimination ‘because of sex.’” It then concluded that this rumor tapped into “a deeply rooted perception…that generally women, not men, use sex to achieve success” and that “with this double-standard, women, but not men, are susceptible to being labelled as ‘sluts’ or worse, prostitutes for selling their bodies for gain.” The Fourth Circuit stressed the importance of Parker’s allegations that: (1) males in the workplace had started the rumor about her; (2) management had failed to remove Jennings from her workplace; (3) she was sanctioned for complaining about a male employee, Jennings, but Jennings was never sanctioned for complaining about her; and (4) she was sanctioned for her rumored relationship, while the alleged male partner in the relationship – Pickett – was not. The Fourth Circuit concluded that Parker’s allegations adequately supported her claim that she had suffered harassment due to her gender and endured a hostile work environment. The appellate court took issue with the district court having characterized the rumor’s effects as merely “a few slights,” and it found that Parker had endured continuous harassment because the rumor had preoccupied her, management and her co-workers. The appellate court also held that because Parker had alleged a plausible hostile work environment claim, she could pursue a retaliation claim based on her allegation that she was disciplined as a result of having complained about the rumor.

Important Takeaways

Parker is a textbook example of how not to handle workplace gossip. Employers confronted with complaints about a damaging workplace rumor should be mindful of the following:

  • Quickly investigate and respond to complaints about rumors. Employers should not take a passive approach to complaints about offensive workplace gossip. In Parker, Reema’s management knew about the rumor and did nothing stymie it, which ultimately exposed the company to liability. Complaints about such rumors should be investigated quickly, but thoroughly. Employees should be warned as soon as possible to stop spreading false information about a co-worker before it becomes too difficult to contain.
  •  Apply equal standards in responding to complaints about rumors. Employers should always be cognizant of the need to treat similarly-situated employees consistently, and responding to a complaint about a rumor is no exception. In Parker, the HR Manager who investigated the rumor appeared to give the benefit of the doubt to the male employee who started the rumor and complained about Parker, while applying a different standard to Parker when she complained about that same employee. Employers should also remember that complaints about rumors may be “protected activity.” Therefore, punishing an employee for complaining about a rumor could potentially give rise to a retaliation claim. Protect confidentiality in responding to workplace rumors. Employers should exercise discretion when handling complaints about rumors. The management in Parker publicly discussed the rumor during at a group meeting, which only caused it to spread.

What Employers Should Consider

In light of this decision, employers can take the following steps to help minimize their liability:

  • Request a legal review of policies regarding workplace cordiality or employee privacy.
  • Train management on how to properly respond to damaging workplace rumors.
  • Ensure that employees are aware of how and to whom they can report damaging rumors.

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Arizona Law Prohibiting Municipalities From Enacting Employee Benefits Ordinances Held Unconstitutional

Posted By Cindy Hesch, Friday, March 8, 2019



Tibor Nagy Shareholder Ogletree Deakins DATE

February 7, 2019 TITLE

Arizona Law Prohibiting Municipalities From Enacting Employee Benefits Ordinances Held Unconstitutional




The Arizona Court of Appeals, Division One, has ruled that the Arizona State Legislature overstepped its authority in 2016, when it prohibited Arizona cities and other municipalities from enacting their own employee benefits ordinances. The ruling reinstates a portion of a 2006 law that permits Arizona municipalities to pass local ordinances requiring employers to provide employment benefits more favorable than those provided under statewide laws. However, federal law, such as the Employee Retirement Income Security Act of 1974 (ERISA), still imposes limits on how much these local ordinances may compel employers to do.


In November 2016, Arizona voters passed Proposition 206, which quickly raised the Arizona minimum wage to $10 per hour, implemented annual minimum wage increases through 2020 (as well as compulsory cost of living increases each year thereafter), and mandated paid sick leave for employees of all private and municipal employers.


Proposition 206 actually amended an earlier Arizona voter initiative (Proposition 202), which in 2006 created the Arizona Minimum Wage Act (MWA). The MWA not only established a state minimum wage law but also included language that empowered Arizona cities and other municipalities to enact separate minimum wage and employee benefits ordinances more favorable to employees than state law and presumably outside of state control. (“A county, city, or town may by ordinance regulate minimum wages and benefits within its geographic boundaries but may not provide for a minimum wage lower than that prescribed in this article.”)


However, earlier in 2016, the Arizona legislature enacted House Bill (H.B.) 2579, which limited some of what the MWA sought to grant to Arizona municipalities by stating that “[t]he regulation of employee benefits, including nonwage compensation, paid and unpaid leave and other absences, meal breaks and rest periods, is of statewide concern. The regulation of nonwage employee benefits pursuant to this chapter and federal law is not subject to further regulation by a city, town or other political subdivision of this state.” Thus, H.B. 2579 did not limit the power to pass local minimum wage ordinances, but it did directly restrict local regulation of employee benefits.


Almost immediately after H.B. 2579’s enactment, a labor union, city council members from several Arizona cities, and Democratic Party legislators sued the State of Arizona in superior court claiming that the law is unconstitutional because its passage violated Arizona’s Voter Protection Act (VPA). The VPA (the product of yet another voter-initiated referendum) amended the Constitution of the State of Arizona in 1998 to prohibit the legislature from repealing or amending voter-passed initiatives, unless the change furthers the purpose of the initiative and passes with at least a three-fourths vote in both the Arizona House of Representatives and Senate. H.B. 2579 did not pass either chamber of the legislature with a three-fourths vote.


On a motion for summary judgment, the superior court ruled that “H.B. 2579 impliedly repealed a portion of the [MWA] and therefore violated the VPA.” The state appealed and Division One of the Arizona Court of Appeals affirmed the lower court’s judgment, concluding, “It is clear from the text [of the MWA] that by granting a county, city or town the ability to ‘regulate minimum wages and benefits,’ the intent of the electorate was to grant these bodies the ability to regulate wages and nonwage benefits.” Unlike other states, such as Florida, which successfully struck down a Miami Beach minimum wage ordinance (despite a Florida state constitutional amendment with a provision similar to that of the MWA), the Arizona legislature’s authority to amend a duly-enacted voter referendum, such as the MWA, is limited by the significant hurdles erected by the VPA.


Whether the legislature’s definition of “nonwage benefits” will survive after other parts of H.B. 2579 were found unconstitutional remains to be seen, but for now the legislative legacy leaves us with a broad spectrum of potential non-wage benefits that local governments are free to legislate, including “fringe benefits, welfare benefits, child or adult care plans, sick pay, vacation pay, severance pay, commissions, bonuses, retirement plan or pension contributions, other employment benefits provided in [the Family and Medical Leave Act] and other amounts promised to the employee that are more than the minimum compensation due an employee by reason of employment.”


Unless the Arizona Supreme Court reverses or limits the scope of the court of appeals’ decision (something not predicable in light of the VPA’s strict constitutional restraints), Arizona municipalities will be free (again) to enact ordinances that may be more “employee friendly” than other applicable statewide laws. However, this week’s decision does not necessarily mean that Arizona municipalities can mandate employers to provide a wide array of employee benefits. In the private sector, most plans providing non-cash benefits are governed exclusively by a federal law, ERISA. An ordinance mandating the establishment of a typical benefit plan likely would be preempted by ERISA. Thus, the uncertainty regarding which employee benefits local governments in Arizona can mandate employers to deliver is far from resolved.






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Key Compliance Topics for the First Quarter of 2019 & Ban the Box

Posted By Cindy Hesch, Monday, January 28, 2019
Updated: Saturday, January 26, 2019

Key Compliance Topics for the First Quarter of 2019

& Ban the Box

By Scott Mara, SHRM-CP, PHR-CA

I can't believe that January is almost over, it seems like the last three weeks have just flown by. Now is the time to develop your HR and Payroll Calendar for 2019; having a comprehensive calendar will help you stay organized and help you maintain compliance. With two months left in the first quarter, here are some key items that should be on your HR radar:

·       Send out the 2018 W-2s by January 31. Develop a process for dealing with returned W-2s and how you will handle the phone calls from current and former employees looking for their W-2s.

·       Adjust the compensation for all employees impacted by the change in the minimum wage that went into effect Jan 1. Pay attention to any retro-pay issues.

·       Obtain an updated W-4 Form by February 15, 2019 from each employee wishing to claim exempt status from Federal Tax Withholding in 2019.

·       File the Annual EEO-1 report by March 31.

·       Purchase and update your employment posters. If you have multi-state locations this can be a challenge. I recommend having a third-party vendor to help you manage this process. It would be a good time to audit your various locations to make sure they have the most current posters in place.

·       Conduct an analysis to see what required training is needed in your company this year and start your planning process now to deliver this training.

·       Conduct a review how your year-end went and how it can be done better this year.

·       Finalize your HR strategic and action plans for 2019 and make sure to communicate it with your staff and your stakeholders.

·       Update your employee handbooks and policies and review your on-boarding process both electronically and in person.

I recommend this site for developing a comprehensive HR and Payroll Calendar it has a lot of good information and it will be a good starting point. Make sure to add your key HR dates on the calendar.

I am not an attorney and this blog is not legal advice. Rather, I am an HR professional like you and when I write these blogs I try to write them from an HR perspective. Another compliance area HR must deal with is the Ban the Box. Ban the Box started back in 2004(1) and has been gaining strength across the U.S. There are 33 states and 150 cities/counties that have some kind Ban the Box law in place (2). Ban the Box is also referred to as "The Fair Chance to Work Movement (3)." 

Ban the Box laws require employers to remove the box on the employment application that asks if an applicant has ever been arrested or convicted of a crime. The premise behind the Ban the Box movement is to have the employer focus on the applicant's work experience, skills and other pertinent employment information; instead, of looking at the applicant's criminal past and using that information against him or her.  (or, the applicant).  The EEOC has stated that using criminal records exclusively in the hiring process can be a form of employment discrimination and in violation of Title VII of the Civil Rights of 1964, as amended. I would recommend that you check out the EEOC's website concerning guidance on arrest and convictions and how they apply to your hiring process.

By removing the criminal questions from the employment application and then delaying the background check until later in the hiring process, you are better able to provide a person with a fair chance to be measured against other candidates based on the person’s work performance, skills and education. You can still use past convictions in your final hiring determination but be careful, document, and when in doubt, check with your employment attorney. The link below has a lot of good information on Ban the Box and has a comprehensive document that is very helpful

Another good source of information about Ban the Box can be found from Anita Campbell who is the Founder, CEO and Publisher of Small Business Trends, she recommends the following for how employers can comply with Ban the Box:

·       Determine which laws apply to your company — Consult with your employment counsel to see if there are any state or local laws that apply to your business, and what they require. Also, EEOC guidelines may apply.

·       Revise and reprint job application forms — Review your employment application form. Does yours ask about criminal history? Consult with your employment counsel and consider removing that question or check box. Then have the form reprinted. As a best practice, more and more employers are voluntarily removing that question. Even those who still strongly believe they can and should inquire into criminal history are doing it later in the hiring process. And, while it may be your company’s practice to review the facts of each situation individually, a check box on a job application has a chilling effect. It feels like an automatic disqualifier. It may keep good candidates from applying. For that reason, alone, some employers remove it.

·       Destroy outdated application forms — Make sure only the new version is used. It’s not uncommon for an outdated form to stay online in one place, even if a new one goes up on another URL. Managers may erroneously keep outdated forms thinking they are doing the company a favor by using up the old supply, too.

·       Review internal HR policies — Update your company’s policies as needed.

·       Train hiring managers — Instruct them not to ask about criminal history during interviews. They could say the wrong thing at the wrong time. It’s best for someone who is knowledgeable, like an HR manager, to handle all legally sensitive matters.

·       Document decisions — Document any hiring decision that is based in whole or in part on a criminal history, including other factors that went into the hiring decision. If challenged, you will need the documentation. You may also be required to provide it to the applicant.

·       Understand how to read background checks — Talk with any background checking services you use. See how they designate criminal history. For example, do they note whether an arrest resulted in a conviction or whether the charge was dismissed later? Is the difference between an arrest and a conviction clearly distinguished?

·       Stay up-to-date — Ask your employment attorney to notify you of any future legal changes. Or stay aware of any changes through business organizations to which you belong.

Thank you for reading and wishing you a happy and wonderful 2019!


1. & 3."What Employers Need to Know About Ban the Box Movement," Anita Campbell. December 24, 2018.

2.    "Ban the Box: U.S. Cities, Counties and States adopt Fair Hiring Policies." Beth Avery and Phil Hernandez. National Employment Law Project. September 25, 2018.

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The U.S. Supreme Court Upheld Lawfulness of Class and Collective Waivers in Arbitration Agreements – Should Your Company Use Them?

Posted By Cindy Hesch, Monday, January 7, 2019

The U.S. Supreme Court Upheld Lawfulness of Class and Collective Waivers in Arbitration Agreements – Should Your Company Use Them?


Kristy Peters, Shareholder, Littler Mendelson


In May 2018, the United States Supreme Court held that class and collective action waivers in arbitration agreements are lawful and must be enforced under the Federal Arbitration Act (FAA). The Court’s decision in Epic Systems Corp. v. Lewis ended a circuit split and overturned the National Labor Relation Board’s opinion that class and collective action waivers violate employees’ rights under the National Labor Relations Act.  The Supreme Court held that the FAA requires arbitration agreements to be enforced on the same grounds as any other contract.


Now that the Supreme Court has weighed in, finding class and collective action waivers in arbitration agreements enforceable, the question many employers ask is whether they should implement arbitration agreements in the workforce. There are a number of issues to consider when determining whether to issue an arbitration agreement. Some of the positive benefits of arbitration agreements are that employees waive their right to a jury trial; a greater level of predictability regarding exposure and risk; less susceptibility to extortive lawsuits; discovery is typically more limited and much more cost effective; and employees cannot bring claims on a class or collective basis. Some of the negative aspects of arbitration agreements are that arbitration fees can be more expensive than court fees; and awards in arbitration are subject to very limited review—which can cut both ways.


Under the #MeToo movement, some state legislatures are pushing for sexual harassment claims to be carved out of arbitration agreements. However, if an employer just carves out sexual harassment claims, what about other discrimination or harassment claims?  Further, a group of law students at top-tier law schools are pressuring law firms to remove arbitration agreements from employment agreements or they will not accept positions with the firm. Other groups of employees could engage in similar pushback.


Numerous employers are successfully implementing arbitration agreements in their workplaces. In jurisdictions such as Arizona, our federal courts have implemented a Mandatory Initial Discovery Pilot Program that mandates extensive disclosure and e-discovery obligations early in this case. Having an arbitration agreement in place allows employers to move to arbitration to limit case discovery to a more reasonable and appropriate level to manage costs.


Overall, all companies should do an analysis of whether arbitration agreements are the right fit for the workplace. A few things to consider are (1) the jurisdictions where employees are located including damages caps in the applicable jurisdictions, typical jury verdicts, and general cost of litigation; (2) potential for class or collective actions; (3) attitude of the judiciary toward discovery and summary judgment; and (4) quality of potential arbitrators. It will be an individualized assessment for each company to determine if having employees execute an arbitration agreement is the right decision, but the trend is for employers to move toward arbitration agreements.

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Maintaining Form I-9 Compliance​ by Scott Mara, SHRM-CP, PHR-CA​

Posted By Cindy Hesch, Tuesday, November 20, 2018

Maintaining Form I-9 Compliance 


By: Scott Mara, SHRM-CP, PHR-CA 


The phrase "I-9 compliance" is a phrase that can keep human resource professionals up at night. Making sure your employees are legal to work in the United States is no joking matter. The Form I-9 is a difficult form to complete and it does not help that the government routinely changes the form on us. Disclaimer: I am not an attorney. I am a human resource professional just like you this blog is not legal advice. It is written from a human resource professional perspective. I recommend that you have access to a competent immigration attorney who has an extensive background handling I-9 issues.


Completing the Form I-9 is required for all employers. This form allows employers to verify the identity and work eligibility of their newly hired employees. Completing this process correctly is essential. If you make mistakes during the process your company can face hefty penalties and fines. Please visit this site explains the Form I-9 inspection: process and what fines can be assessed. Besides monetary fines, you can also face the possibility of imprisonment.  


Here are some practical tips to help maintain Form I-9 compliance. 

·       The most important decision pertaining to processing new hires is who should be responsible/in charge of completing the I-9 process? Will it be human resources, hiring managers, or someone else? Whoever it is, please make sure they are trained, and then train them again. These folks are your first line of defense. You don't want people handling this process who are clueless.  

·       Make sure you are using the current Form I-9. This form gets updated periodically and it’s very easy to miss an update. The current form by the way is: USCIS Form I-9 OMB No. 1615-0047 Expires on 8/31/2019. The U.S. Citizen and Immigration Services has a service where you can enter your email and receive an email notice when they update their forms. You can visit their website and get on their email distribution list: 

·       Conduct your own quarterly internal audits on your I-9 forms and your process. You can have an internal team that randomly selects I-9s and reviews them for compliance. I would also recommend hiring an experienced outside company that specialized in I-9s or a law firm to conduct a more comprehensive audit on an annual basis. It never hurts to check a few I-9s on a monthly basis especially if you have new folks processing them.  

·       Never ask new hires for any specific document(s) or ask for more documentation than is required. This can open the door for a discrimination claim. 

·       Keep the I-9 and copies of the documents used to complete the I-9 for three years after the employee's hire date or one year after h/her termination, whichever is comes later. 

·       Never place the I-9 in the employee's personnel file. Keep it in a separate file. 

·       If errors or mistakes are found correct them immediately, make sure to properly document the corrections with the date, signatures and any other supporting paperwork. Create a good audit trail. Finally conduct a review why the errors/mistakes occurred and fix the process and retrain. Again, document what you did. This helps show good faith. 

·       Develop a tracking system to monitor expiring I-9 supporting documents.  

·       Watch the new hire complete the top of the Form I-9 to make sure they are filling out their portion of the form correctly. 

·       If you can, your organization should invest in an automated I-9 application/software. These systems work great and are maintained by companies who specialized in processing and the retention of I-9 forms. 

·       Never ask an applicant to complete an I-9 before an offer. This can lead to possible discrimination charge. 

·       Make sure you accept documents that are listed on the form and appear real. You don't have to be a document expert but if a document looks suspicious it’s appropriate to question it. You can have another human resource professional review the document or scan it and send it to your attorney for review. If the decision remains that the document still looks suspect, then show the list of acceptable documents to the new hire and have them present another form. If they can't produce another document, then you may rescind your job offer. However, this can be a sticky area and it would be best to receive legal counsel to help guide you. 


Compliance must be a top priority for all human resource professionals. The stakes are too high; and the consequences can be severe. It is better to be prepared, have sound processes in place and good documentation on hand. It is best to be ready when ICE comes knocking at your door. I've been through an audit it’s not fun. It can be stressful. If you are audited, get counsel involved quickly, be polite, cooperative and responsive to the auditor. Do your best to build a good working relationship with them. This helped me survive an ICE audit years ago. I hope this blog was helpful, I appreciate you taking the time to read it. As always practice compliant human resources, until next time!

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A Year has passed, and #MeToo has far surpassed #MeTwo

Posted By Cindy Hesch, Wednesday, November 7, 2018

A Year has passed, and #MeToo has far surpassed #MeTwo

By Pamela L. Kingsley

Reports of sexual misconduct are still coming at us with regularity.  The “Silence Breakers” who were Time magazine’s “Person of the Year” for 2018 are still talking. Every day there is a new story, or a variation or update of a previously described event. At first blush, we were surprised, and as we learned more, we were dismayed and saddened.   

Case in point. USA Gymnastics is looking for its fourth CEO since March 2017 and is facing claims by two-time Olympian Aly Raisman that until the focus is not just on what Larry Nassar did, but includes how the entire organization allowed his child abuse to occur, be covered up initially, and even now, still not be independently investigated, hiring the best CEO is not going to resolve anything.  What do she and the other 150 or so of Nassar’s victims want? Transparency. They want the truth. They want to know their voices have been heard and mattered.

On a one-on-one basis, why is this so important?  The victim of abuse knows what has happened to her.  There is almost never any doubt.  No one needs to tell her that what happened was wrong.

The same is true when a man (I will call Bob) watches as someone steals his cell phone.  If Bob proclaims what he saw and demands an investigation and justice, no one will defend the thief’s conduct or sweep it under the rug. 

But what if the cell-phone taker is the Bob’s supervisor Max, and he tells Bob that if Bob complains to anyone, Max will deny it and will make sure that Bob loses his job. Likely, Max has helped himself to other employees’ possessions, but because there is only one (fantastic) Max, they all know the company does not want to hear their complaints. And perhaps, they are right – and at least some of Max’s superiors at the company already know about his “antics.”

Bob and his co-workers feel powerless to complain.  That is so even though no one would dare to defend or excuse Max’s thievery and threats.

Historically, the victims of sexual abuse have felt powerless to complain. Empowering woman to speak up and call out wrongful misconduct is at the core of the #MeToo movement.  In the context of employment, where sexual misconduct can take the form of unwanted sexual attention or sexual coercion, OR sexually crude conduct or sexist comments,[1] employers must recognize their responsibility for the environment.

What is the one thing that a business can do toward avoiding claims of sexual harassment?[2] 

Empower its employees to speak up against discrimination and harassment of all kinds, whether or not directed against themselves. 

Of course, the employer needs to focus on sexual harassment, but it cannot stop there to be effective for that purpose. All employees need to know that they may decry all forms of discrimination.  

If an employee feels deprived of a legal right in one arena, the employee will experience it in others.

Since the Supreme Court’s decisions in Ellerth and Farragher,[3] Employees have been told to speak up if they are victims of sexual harassment or they may not have a claim against their employers (if the perpetrators are not their supervisors or there is no adverse employment action[4]).  Employees also need to know they may speak up even when they are not the victims. If an employee is expected to remain silent when others are being abused, the employee will feel deprived of power.

Allowing to employees to assert claims is not enough. For years, there have been multiple complaints of sexual harassment essentially ignored by HR departments.  Employers need to listen, and employees need to know they are being heard. Instead of allowing perpetrators to escape with verbal warnings, not even disclosed to the victims, employers who find any substance to charges need to have substantive sanctions and make them known to others.  

For a number of reasons, primarily based on futility, at least until recently, approximately 70% of employees have not complained of harassment against them.  What have women done? Quit.

As Mary Jo O’Neill, Regional Attorney for the EEOC, has been telling audiences, women would rather endure the behavior, avoid the harasser, downplay the gravity of the situation, seek support elsewhere, and ultimately leave rather than face the fear of disbelief, inaction, humiliation, blame, ostracism, damage to reputation, retaliation, and damage to career. This will not continue, and the sooner it ends, the better.

Employers need to embrace the cultural shift that #MeToo and “Times Up” have brought to all aspects of society by decrying harassment not just by lip-service paid to their handbooks’ policy but in the ranks. Managers must fulfill their duty to report. Companies must be diligent in their response – act quickly, be though, and show no partiality.

If employers shift their environment so that employees are encouraged, hounded, and even required to demand compliance with policy, the numbers will change.  Soon, morale will increase, which will lead to greater profitability – and put smiles on the faces of department heads, including human resource managers!

[1] EEOC’s Select Task Force on the Study of Harassment in the Workplace, A Bipartisan Effort, June 2016 (available at harassment/report.cfm, reports that an estimated 60% of women experience unwanted sexual attention or sexual coercion, OR sexually crude conduct or sexist comments in the workplace.


[2] In fact, there are a number of strategies that employers can adopt.  Several are set out at

[4] For hostile work environment sexual harassment by supervisors or superiors, employers have a defense if:  

(a)    No tangible adverse employment action was taken against the employee (for example, no discharge, demotion, or undesirable reassignment).

(b)    The employer exercised reasonable care to prevent and promptly correct the harassing behavior. For example, a harassment policy demonstrates reasonable care to prevent harassing behavior.

(c)    The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm (for example, by not taking advantage of reporting procedures outlined in an anti-harassment policy).

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Recent DOL Opinion Letters Offer Guidance on FMLA, No-Fault Attendance Policy, and Wellness Screenings

Posted By Cindy Hesch, Thursday, August 30, 2018

Recent DOL Opinion Letters Offer Guidance on FMLA, No-Fault Attendance Policy, and Wellness Screenings

By Erin Norris Bass
Associate, Steptoe & Johnson LLP

On August 28, 2018, the U.S. Department of Labor’s Wage Hour Division issued six new advisory opinion letters offering employers guidance on a range of leave and wage issues under federal law, including the application of the Family Medical Leave Act to organ donors and a no-fault attendance policy.  The newly released Opinion Letters are available here.

FMLA Protects Organ Donors

In one letter, the DOL concluded that “organ-donation surgery can qualify as a ‘serious health condition’” under the FMLA, thus entitling the employee to protected leave. The DOL reached this conclusion despite that the employee was in good health before the donation and voluntarily elected to undergo the surgery. The DOL reasoned that organ-donation surgery may require both “inpatient care” or “continuing treatment” and, therefore, meets the regulatory definitions of a serious health condition.

No-Fault Attendance Policy Complies with FMLA

In another letter, the DOL concluded that an employer’s specific no-fault attendance policy did not violate the FMLA. Under the policy, employees accrued points for tardiness and absences, except for certain absences, including FMLA-protected leave. The points remained on an employee’s record for 12 months, and the employer would extend that that period for any time the employee spent not in “active service,” such as during FMLA leave. The employer discharged an employee who accrued 18 points.

The DOL concluded that “freezing” an employee’s attendance points while on FMLA leave did not violate the Act by denying a benefit to the employee who took FMLA leave.  The DOL reasoned that the FMLA does not entitle an employee to superior benefits because of FMLA leave, and the attendance policy placed the employee in the same position as if he or she never taken any leave. The DOL cautioned, however, that employers must not treat FMLA leave different from other forms of leave. Thus, the employer must “freeze” an employee’s attendance points for all similar types of leave.

Employers Need Not Pay for Voluntary Participation in Wellness Screenings

In a third letter, the DOL concluded that an employer need not pay employees who voluntarily choose to participate in biometric screenings, wellness activities, and benefit fairs. The DOL emphasized that, in the employer’s program at issue, the program predominately benefited the employee, was wholly optional, and employees did not need to perform any job-related duties during the program.

Guidance on FLSA Overtime and Volunteer Exemptions

The DOL also issued two letters clarifying the application of FLSA overtime exemptions. One letter concluded that the retail-sales exemption applied to employees who sold an internet payment software platform. The second letter concluded that an FLSA exemption for employees working in movie theatres applied equally to a theater that offered in-theatre dining.

A third letter concluded that workers who assisted a nonprofit organization with grading a credentials exam qualified as volunteers who did not require compensation.

Background on DOL Opinion Letters

DOL opinion letters allow businesses to ask the DOL for answers to their specific compliance questions under the statutes the DOL enforces. The DOL’s opinion letters do not constitute definitive statements of the law; but the letters signal the DOL’s own interpretation and enforcement priorities, and courts often look to them as persuasive authority on the law. In addition, the letters provide a possible safety net to employers facing similar situations. Employers who rely on DOL opinion letters in good faith sometimes qualify for a defense to alleged violations of federal wage-hour law, even if a court later disagrees with the DOL’s interpretation.  

The letters mark one of only a handful of times the DOL has issued letters in the last year. In June 2017, the DOL announced that it would begin re-issuing opinion letters, after the Obama administration eliminated the practice.

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Equal Pay Practices

Posted By Cindy Hesch, Thursday, June 21, 2018


By:  Pat Playman, PHR, SHRM-CP

In a ruling sure to upset some employer’s current pay practices, the Ninth Circuit Court of Appeals ruled that “prior salary alone or in combination with other factors cannot justify a wage differential” between male and female employees. The ruling addressed pay differentials under the federal Equal Pay Act.

The Equal Pay Act

The Equal Pay Act prohibits employers from engaging in sex discriminating by paying an employee at a rate less than the rate at which the employer pays an employee of the opposite sex for equal work on jobs requiring equal skill, effort, and responsibility and which are performed under similar working conditions.

The Act permits pay differentials between male and female employees when done in accordance with one of the following:

§  A seniority system;

§  A merit system;

§  A system which measures earnings by quantity or quality of production; or

§  A differential based on any other factor other than sex.

This recent case addressed a pay differential under this last exception, the catchall provision.

Prior Salary is Not a Valid Reason for a Pay Differential

In Rizo v. Yovino, the employer argued that using an employee’s or applicant’s prior salary to establish his or her pay rate falls within the catchall provision of the Equal Pay Act as a “factor other than sex.” The court wholeheartedly disagreed, finding that permitting such an argument would perpetuate sex-based wage differentials by allowing the employer to rely on prior sex-based differentials to justify its current pay practices.

Instead, the court ruled that the Equal Pay Act’s catchall provision of “any other factor other than sex” is limited to “legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.”

In addition, the court held that the Equal Pay Act creates a type of strict liability for employers, meaning that an employee need not show discriminatory intent relating to the differential in pay in order to show a violation of the law. Thus, if an employer is unable to show that its unequal pay practices arise from legitimate job-related factors, or one of the other exceptions under the Act, it would liable unlawful pay practices, even without evidence of discriminatory intent.


Further Considerations

Employers should review their pay practices to ensure fair and equal pay rates have been established for both current and prospective employees.  If any employees were hired under a questionable pay rate system, the employer should consider whether a differential in pay exists, and if so, whether that pay differential is support by legitimate factors.  Any pay differentials should be supported by a seniority system, merit system, system based on the employee’s quantity or quality of work, or other legitimate job-related factors.

Finally, employers should keep in mind that many states have passed laws or are in the process of passing laws prohibiting employers from asking job applicants about their salary history until after a conditional offer of employment has been made.  In reviewing their hiring and pay practices for compliance with the Equal Pay Act, employers should also consider these state prohibitions and ensure all hiring practices including applications and interview procedures do not run afoul of them by asking for such information.

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Employers: Pay Attention to What it Takes for a Retaliation Claim under The Fair Wages and Healthy Families Act (or be ready to pay)

Posted By Cindy Hesch, Thursday, April 12, 2018


Employers:  Pay Attention to What it Takes for a Retaliation Claim under The Fair Wages and Healthy Families Act

(or be ready to pay)

When employers were faced with the challenges of complying with The Fair Wages and Healthy Families Act (“the Act”) brought in with the passage of Prop 206 in November 2016, there was a lot at stake. As an employment lawyer, I had to educate my clients on the paid sick time requirements – offering differing options depending upon the composition of the employer’s staff and whether it already had a PTO policy in place. When the response was one of resistance, I had only to describe the possible penalties such as $250/$1,000 for recordkeeping and posting failures. I knew that the process would be difficult for many but hoped that once my clients were able to create, establish, and implement a policy, they would resume course and get back to making money. Ultimately, the retaliation provisions were what I tried to impress upon my owners as needing to be drummed home to their managers.

Under the Act, ‘retaliation’ shall mean denial of any right guaranteed under [the Act] and any threat, discharge, suspension, demotion, reduction of hours, or any other adverse action against an employee for the exercise of any right guaranteed herein including any sanctions against an employee who is the recipient of public benefits for rights guaranteed herein. Retaliation shall also include interference with or punishment for in any manner participating in or assisting an investigation, proceeding or hearing under this article.” (A.R.S. § 23-364 A)

Although already familiar with anti-retaliation policies, the consequences for failing caught everyone’s attention:

G. Any employer who fails to pay the wages or earned paid sick time required under this article shall be required to pay the employee the balance of the wages or earned paid sick time owed, including interest thereon, and an additional amount equal to twice the underpaid wages or earned paid sick time. Any employer who retaliates against an employee or other person in violation of this article shall be required to pay the employee an amount set by the commission or a court sufficient to compensate the employee and deter future violations, but not less than one hundred fifty dollars for each day that the violation continued or until legal judgment is final. The commission and the courts shall have the authority to order payment of such unpaid wages, unpaid earned sick time, other amounts, and civil penalties and to order any other appropriate legal or equitable relief for violations of this article. Civil penalties shall be retained by the agency that recovered them and used to finance activities to enforce this article. A prevailing plaintiff shall be entitled to reasonable attorney’s fees and costs of suit.


Although stiff, most of my clients felt they never would be fined as they had no intention of ever violating the law. But then I showed them A.R.S. § 23-364 B:

B. No employer or other person shall discriminate or subject any person to retaliation for asserting any claim or right under this article, for assisting any other person in doing so, or for informing any person about their rights. Taking adverse action against a person within ninety days of a person’s engaging in the foregoing activities shall raise a presumption that such action was retaliation, which may be rebutted by clear and convincing evidence that such action was taken for other permissible reasons.


I would be asked, “Does that mean if I express dismay at a request for paid sick time, then allow it, but then transfer the employee with a demotion two months later, I am at risk for a retaliation claim that BY LAW, if I cannot overcome with clear and convincing evidence, my company would be liable for $150 a day for the next three years that it takes to have a lawsuit and trial, and reach a judgment?”

“You might be,” would be my answer, “although this sounds extreme, the potential is there.  And don’t forget, that because you are an ‘individual . . . acting directly or indirectly in the interest of an employer in relation to an employee,’ you are liable personally as well. (A.R.S. § 23-362 B)

While it may be highly unlikely that the Industrial Commission of Arizona is going to pursue employers in these types of circumstances, employees who have received any moderate adverse employment action within 90 days of requesting paid sick time (or even just telling others about their rights) will have access to a pool of plaintiffs lawyers who know that if successful, they are guaranteed a judgment for their attorneys’ fees. (A.R.S. § 23-364 G). If they combine that with contingency agreements that alternatively give them 40% of those accrued daily fines, pay dirt!

The concept that temporal proximity can support a causal link between a protected activity and an adverse employment action is not new.

Setting aside the Act and paid sick time-related claims, just what does it take for an employee to make a claim for retaliation and how does timing enter in? 

The Ninth Circuit Court of Appeals, which presides over federal courts in Arizona, says that to establish causation, an employee must provide evidence – either direct or circumstantial – that the individuals responsible for the adverse employment action knew about the protected activity and intended to retaliate based on it. See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003). Before June of 2013, a plaintiff could establish the causal element of a retaliation claim by showing merely that the protected activity was a motivating factor in the adverse employment action. In fact, long before Prop 206, the Ninth Circuit had held that such a causal link could be inferred from temporal proximity alone. See Thomas v. City of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004). For example, termination because of a disability could be inferred by timing alone “when adverse employment actions are taken within a reasonable period of time” after the employer learns of the employees disability or after the employee engages in protected activity. Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000).

Then, on June 24, 2013, the Supreme Court decided Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013), and – for retaliation in Title VII cases, rejected the previous motivating-factor test for causality in favor of the more demanding “but-for” test. Post-Nassar, knowledge of the protected activity and proximity in time may not establish a causal link, but it remains relevant when inferring “but-for” causation for retaliation.

Thus, while the hurdle for Title VII plaintiffs who assert retaliation claims has been raised higher by the appellate courts, in that they must show the adverse employment action was due solely because of the retaliation, an Arizona employee who has received an adverse employment action within 90 days of “asserting any claim or right under this article, for assisting any other person in doing so, or for informing any person about their rights” may claim retaliation and the employer will have to rebut the claim by “clear and convincing evidence” or face paying at least “one hundred fifty dollars for each day that the violation continued or until legal judgment is final,” PLUS “attorney’s fees and costs of suit.”

The challenge employers can anticipate is that a causal link was created when the adverse action took place within the 90-day period, and the employer can prevail only by proving with clear and convincing evidence that the underlying protected employee conduct was not one of the motivating factors for the adverse action. Failing that, the employer should remedy “the violation” as quickly as it can.

By Pamela L. Kingsley, Tiffany & Bosco, P.A.


Pamela L. Kingsley | Shareholder | 602.255.6015

Employment | Commercial and Business Litigation | Appellate


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