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The SHRMGP Law and Legislative Blog is your resource to keep up-to-date on relevant human resources laws and legislation that could impact our profession.

 

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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 https://www.ice.gov/factsheets/i9-inspection 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: https://www.uscis.gov/forms-updates 

·       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 www.eeoc.gov/task_force/ 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 https://www.eeoc.gov/eeoc/task_force/harassment/checklists.cfm.

[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

EQUAL PAY PRACTICES

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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#MeToo vs. the NLRA: How to Craft Confidentiality Policies that Survive Scrutiny from the EEOC and the NLRB

Posted By Cindy Hesch, Thursday, March 29, 2018
Updated: Monday, March 26, 2018

#MeToo vs. the NLRA: How to Craft Confidentiality Policies that Survive Scrutiny from the EEOC and the NLRB

Erin Norris Bass
Associate
Steptoe & Johnson LLP

Employers often defend Title VII harassment claims by showing that they exercised reasonable care to prevent and correct harassing behavior. A key aspect of reasonable care requires an employer to have an anti-harassment policy that, according to the EEOC, “should contain, at a minimum” six elements including an “assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.”

At the same time, the NLRA prohibits employers from maintaining blanket confidentiality rules that prohibit employees from discussing workplace investigations. In Banner Estrella Medical Center, 358 NLRB 809 (2012), the NLRB found that an HR consultant violated the NLRA by routinely asking employees not discuss ongoing investigations with their coworkers. To lawfully require confidentiality of employees, an employer must show a legitimate business justification specific to the investigation at issue, such as the need to protect witnesses or prevent tampering with evidence. That remains the law today, despite the NLRB’s recent shift on employer policies.

So how’s an employer to reconcile those seemingly conflicting laws?

First, written anti-harassment policies should inform employees that management will protect the confidentiality of the complainant to the fullest extent possible. The policy can explain to employees that management may need to disclose some information in order to conduct a thorough investigation. But the policy should not instruct employees that they must never discuss ongoing workplace investigations.

Second, employers can and should always require management (that is, employees who qualify as “supervisors” under Section 2(11) of the NLRA) to maintain the confidentiality of investigations and disclose details only to those who need to know. The NLRA does not give Section 2(11) supervisors the right to engage in concerted activity, and therefore management can impose additional restrictions on them. In addition, employers should hold their supervisors accountable for appropriately maintaining confidentiality; otherwise their conduct may deter employees from reporting harassment, and the EEOC may find that an employer failed to take reasonable care to prevent harassment.

Finally, employers must make individualized determinations in each investigation as to whether the circumstances warrant instructing employees not to discuss the investigation. Take a case where management discovers during the course of the investigation that one employee sent text messages to other employees telling them what to say during investigation interviews. In that case, management could demonstrate a reasonable fear that employees will fabricate their stories unless instructed not to speak about the investigation. If management believes it has a legitimate business justification for imposing a confidentiality rule, management should document its reasons and carefully communicate the confidentiality rule to employees to minimize litigation risk.

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EEO-1 Deadline is Approaching

Posted By Cindy Hesch, Thursday, March 1, 2018
Updated: Tuesday, February 27, 2018

 

EEO-1 Deadline is Approaching

By Scott Mara, SHRM-CP, PHR-CA

 

                What is the EEO-1 report? The Employer Information EEO-1 report (Standard Form 100) is completed each year under the authority of Title VII of the Civil Rights Act of 1964, as amended. It is one of those tedious tasks that someone in HR must complete. The report requires organizations to gather data on their employees and categorize it by: race/ethnicity, gender, and job category. Per the EEOC, all companies with 100 or more employees must complete the survey. Federal contractors who have contracts of $50,000 must also file an EEO-1 report.

I hope you are working on your report because it is due by March 31, 2018. If you need more time, you can request a one-time 30-day extension by emailing E1.extentsions@eeoc.gov according to the EEOC website the one-time 30-day extension will be granted after your email has been sent. There is no need to wait for a response from the EEO-1 Joint Reporting Committee. They recommend you just continue to gather your data and enter it into the online system which is located at https://egov.eeoc.gov/eeo1/login. Failure to submit the annual EEO-1 report or making false statements on the report can lead to fines and even imprisonment. Scary stuff. Get it done and do it correctly.

                You should have your company EEO-1 number and password to access the online reporting site. This information is contained in the annual EEO-1 notification letter that was sent to your company’s contact person. If you don’t have this information contact EEO-1 Joint Reporting Committee at 877-392-4647 or by email E1.techassistance@eeoc.gov as soon as possible.

                If you don’t have all your data collected, then you better get the ball rolling now! You can still have your employees complete a self-identification form after they are hired but make sure the form is EEOC compliant. Their website has sample forms you can use or model yours after. The best time to gather this information is during the on-boarding process. Trust me, trying to get this information from employees after the fact is very difficult. Employees get very suspicious when you ask for this data after they have been hired. But when you ask for it during the on-boarding process it seems like no big deal. Go figure. Make sure the employees know that providing this information is voluntary and it won’t be used for anything else other than complying with the EEOC reporting requirements. If the employee refuses to complete the form the EEOC says you can get the information from any existing employment record. If you don’t have anything you can use, then have a manager or an HR professional do a visual identification on the employee’s race/ethnicity and gender. I know this sounds bad, but it is in the EEO-1 Frequently Asked Questions and Answers. Please make a note on the form that the employee refused to respond and make a note on which method was used to determine the employee’s race/ethnicity and gender.

Remember you are reporting on 2017 data. EEOC requires that you base your reporting on one payroll period between October 1 and December 31. I suggest you run some reports and see which pay period has the best data and use that pay period. Some folks recommend using a pay period with the least number of employees. This is also a good time to see if you have pay equity issues. At some point the EEOC may start asking for this information.

                Don’t waste time this can be labor intensive process. Make sure you have all your data, make sure it was entered correctly and then double check your work. Once completed, you will submit the EEO-1 report via the EEOC website make sure to print off a PDF of your report and keep it with the payroll records you used along with the self-identification forms that were used along with any memos or emails. All this data will be your supporting documentation in case you are audited.

                If you had a tough time during this reporting cycle this is the time to find ways to improve the process for next year. I suggest doing random checks during the year to make sure employees are completing the self-identification form during the on-boarding process. Make sure you are getting the data in your system now, so you don’t need to track it down next year. For more information visit the EEOC website they have a lot of information on this topic including a 168-page guide on how enter data into their system.  

                 Thanks for reading and continue to practice safe HR and don’t procrastinate and get that report done!

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To Mediate or not that is the question?

Posted By Cindy Hesch, Thursday, February 15, 2018
Updated: Monday, February 12, 2018

To Mediate or not that is the question?

By Scott Mara, SHRM-CP, PHR-CA

 

Almost every HR person has probably received an EEOC charge letter at some point in their career. If you have not you are truly lucky, or your charge is on the way. The charge letter is not something to take lightly. HR will need to investigate the charge and prepare a position statement. Some organizations have their legal counsel draft the position statement which can take a lot of time and be costly. There is another option that is available to you and that option is mediation. I’ve participated in several mediations and felt they were very successful. I know the lawyers out there are rolling their eyes and laughing. But seriously, mediation is not a bad option and can be cost effective.

EEOC started offering mediation in April 1999. According to the EEOC website, between 1999-2017 the EEOC completed over 212,000 mediations which has lead to 153,000 charges being successfully resolved. As of September 2017, EEOC had over 2,800 universal mediation agreements in place with various local, regional and national employers.

So, what in the heck is mediation? Well, mediation is a form of alternative dispute resolution or ADR. Mediation is an informal and a confidential way for the employee and employer to resolve their disputes with the help of a neutral third-party mediator. The mediator does not decide who is right or wrong and they don’t issue a decision either. Instead, the mediator helps guide the parties, hopefully to a mutually agreed upon resolution. It is important to note, when a charge is filed with the EEOC it can take a year or more for it to be resolved; however, with mediation a charge can usually be resolved in three months or less. I’ve used that line during one mediation with a former employee. I said we can get this done today or you can wait a year or so and you might not get the outcome you were hoping for. The look on his face was priceless and we settled the case on the spot.

Before you decide to mediate, you need to conduct your investigation into the charge to see if there is any merit to the allegation(s). You then need to prepare a position statement based on the investigation. This process serves three main purposes, first it allows you to determine the merit of the charge(s) second, it provides you material that you can use during mediation process and third, you will have your position statement done in case mediation is not successful.  

Mediation is held at a location determined by the EEOC usually their office; both parties arrive and will be placed in different rooms. The parties will then join the mediator in a joint session or sometimes the parties can stay in separate rooms and negotiate through the mediator. Either way the mediator will explain the process to both parties, go over the ground rules and allow both parties to provide their opening statement or their side of the story. During the process, the mediator will have the parties work on finding common ground towards a mutually agreeable solution. This process could take a few hours. Hopefully, at the end you will have an agreement and reach closure.

If you decide mediation is an option for you here are some tips I would like to sha

  • Come with an open mind, leave your ego at the door. The goal is to close this case and move on.
  • Do your homework before attending the mediation session, this is where the position statement and investigation comes into play. Know your facts, draft your opening statement ahead of time. Review the employee’s file and talk to the employee’s manager and witnesses to gather more information. This due diligence will help during the mediation.  
  • You can have an attorney draft a settlement agreement ahead of time and leave a blank for the financial aspect.
  • Make sure you know what your company is comfortable with in terms of a financial settlement. If you need to go above your authorized settlement amount, make sure to get your management’s approval.
  • Sometimes employees just want to be heard and know that we are taking their concerns seriously.
  • Understand you might not get everything you want in an agreement.
  • Don’t feel pressured to reach an agreement. If your investigation determined you have a strong case, it’s ok to walk away and submit a position statement and go that route. This is called leverage.
  • If you think the mediation might be tough, its ok to bring counsel with you especially if it’s your first time. I’ve done mediations solo and with counsel. The times I used counsel were on difficult mediations.

Mediation is a good option don’t be afraid to try it. Thanks for reading and continue to practice safe HR!

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SHRMGP LLAC Legal Briefing

Posted By Cindy Hesch, Wednesday, January 31, 2018

by Tyree Boze, PHR, SHRM-CP

The SHRMGP Law and Legislative Action Committee had a legal briefing to kick off the year with three subject matter experts discussing current issues in immigration and labor law as well as a review of the AZ Earned Paid Sick Time.  Here are a few takeaways that were notable, but this is just a snippet of the content so hopefully it does the briefing justice!

Jill Bloom, Partner at Fragomen, was back to discuss the ever changing landscape of immigration.  She gave an overview of what happened in 2017 and what is on the horizon for 2018, making note that immigration law has not had a major overhaul since 1996 because no one can agree on how to effectively do it.  Jill painted a picture to show why change is necessary: She could file 10 cases, all being the same, but there will be 10 different results. 

If your company doesn’t employ foreign nationals, you may look at immigration as only a social or political concern.  However, US companies rely on foreign countries like India and China for STEM positions where there are no US candidates.  Thus, the concern in the business community has grown with the most recent rumors that certain programs like EAD (Employment Card Authorization) will disappear or extensions of stay for those trying to get their green card will be taken away.

Steven Wheeless, Partner at Steptoe & Johnson, LLP, provided an update on the NLRB.  Steven discussed numerous decisions that will be reversed due to the recent changes with the composition of the NLRB from Democratic majority to Republican.  One such example is a decision involving Boeing Company’s practice of not allowing phones in the work area due to confidentiality nature of the work performed.  The phone provision was determined unlawful so employees could take pictures and post unfair labor practices.  This decision and reversal provide clarity on lawfulness of work rules and interference of business interests with employee rights.

In regards to the NLRA, non-unionized companies need to recognize “concerted activity” so they do not violate the act.  Concerted activity can include two or more employees complaining about pay, discussing safety issues, and/or terms and conditions of employment.  Thus, Steven recommended not only basic training for your management teams about labor law so they know where the boundaries are, but leadership training on how to build a team and loyalty so employees simply don’t hate their supervisors. 

Courtney Hayden, from the Industrial Commission of Arizona’s Labor Department, spoke on Arizona’s earned paid sick time.  She reinforced the importance of the FAQs to interpretation of the Earned Paid Sick Time law as well as using resources like herself when there is uncertainty. 

There were a number of both HR professionals and lawyers that were surprised when Courtney clarified that employers should not be basing accruals for salaried/exempt employees on a 40 hour work week, but that employers that do not front load the earned sick time, should be tracking salaried/exempt employee hours for accrual purposes.

All employees’ must have ready and free access to their earned paid sick time balances on a regular payroll record which can include their paycheck or electronically through a portal.  Currently, investigations have been based on such payroll records. 

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