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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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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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#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
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 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 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 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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NLRB Delivers Holiday Gifts to Employers; Overrules 5 Cases and Signals More to Come

Posted By Cindy Hesch, Wednesday, December 20, 2017

NLRB Delivers Holiday Gifts to Employers; Overrules 5 Cases and Signals More to Come

By Erin Norris Bass, Steptoe & Johnson LLP

Last week, the newly-formed Republican majority of the National Labor Relations Board overruled five significant cases, bringing sweeping changes that favor employers just in time for the Holidays.  I provide a summary of each of those decisions and their significance below.

The flood of significant decisions came just as Chairman Miscimarra’s term ended on December 16, 2017.  Departing Board Members often push to issue decisions at the end of their term to resolve issues important to them and cement their legacy. 

The decisions come on the heels of two other significant developments at the NLRB this month:  new GC Peter Robb’s memorandum to Regional Directors regarding his enforcement priorities, signaling a dramatic change from his predecessor in a manner that benefit employers; and the Board’s Request for Information regarding the “ambush” election rules, signifying it intends to undo those rules.

To the Board’s decisions:

In PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15, 2017), the Board overruled Specialty Healthcare, the decision that made it possible for unions to organize “micro-units” of employees by making “the extent of union organizing ‘controlling.’”  Under Specialty Healthcare, the group of employees that a union petitioned to represent was “deemed appropriate in all but rare cases.”

The Board in PCC Structurals returned to the previous standard for determining whether the group of employees that the union seeks to represent qualifies as an appropriate bargaining unit: “the traditional community of interest standard,” which requires the Board “to undertake a more vigorous assessment of unit appropriateness, regardless of whether an ‘overwhelming’ community of interest exists between excluded employees and those in the petitioned-for unit.”  The majority wrote that “the Act does not compel the Board to give extraordinary deference to the petitioned-for unit” but instead requires the Board to “tak[e] into consideration the interests of employees both within and outside the petitioned-for unit.”

In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), the Board overruled Browning Ferris, the decision that dramatically expanded the definition of “joint employer” under the NLRA by making two entities joint employers if one entity “reserved” control or exercised “indirect” control over terms and conditions of another’s employees.   The Board returned to the prior standard, writing: “a finding of joint-employer status shall once again require proof that putative joint employer entities have exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control), the control must be ‘direct and immediate’ (rather than indirect), and joint-employer status will not result from control that is ‘limited and routine.’”

In Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the Board overruled the part of Lutheran Heritage that held unlawful all facially neutral work rules that employees could “reasonably construe” to prohibit Section 7 activity.  The Obama-Board used that standard to invalidate countless employer handbook policies, including rules requiring “civility” and “respect” in the workplace.  The Board announced a new test for analyzing facially neutral employer work rules, directing the Board to “evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.”

The Board applied its new test in Boeing to find a no-recording policy lawful.  The policy prohibited employees from using cell phone cameras, webcams, and other photographic devices to take images or video without management’s permission.  The Board found the policy justified as an “integral component of Boeing’s security protocols,” which were necessary to comply with government rules for performing classified work, protect highly sensitive proprietary information, and “limit[] the risk of Boeing becoming a target of a terrorist attack.”

Significantly, the majority also expressly overruled cases holding “that it violates the Act to maintain rules requiring employers to foster ‘harmonious interactions and relationships’ or to maintain basic standards of civility in the workplace.” 

In UPMC, 365 NLRB No. 153 (Dec. 11, 2017), the Board overruled United States Postal Service, the decision that made it impractical for employers to settle unfair labor practice charges short of full-blown litigation because it required settlements to provide “complete relief” for every alleged unfair labor practice.  The Board returned to the previous standard that permits Administrative Law Judges to approve settlement offers from employers so long as they are “reasonable,” even if the NLRB general counsel and charging party object to the settlement. 

In Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017), the Board overruled E.I. du Point de Nemours, a decision that expanded the types of changes to terms and conditions of employment that an employer must bargain with a union over.  The Board in Raytheon held that an employer does not need to bargain when “the employer takes actions that are not materially different from what it has done in the past,” which was the previous standard under the Act.  In Raytheon, the Board held that the employer lawfully modified employee medical benefit plans after the CBA expired because the employer had made similar modifications annually for 11 years.

Each of the decisions is available here.

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‘Tis the Season for the Office Holiday Party

Posted By Cindy Hesch, Monday, December 11, 2017

‘Tis the Season for the Office Holiday Party

By: Scott Mara, SHRM-CP, PHR-CA

Happy Holidays! It is that time of the year where Human Resources (HR) must be ready for the annual office holiday party. It can be a scary time of the year for us. The recent rash of harassment allegations coming forward from all sectors of business and government has made this a very hot issue. HR must be diligent and do what it can to make the office party a safe and policy compliant event. Don’t be that HR department who was asleep at the wheel. Just remember - mixing alcohol, employees, cell phones and social media can be dangerous.

Once a date is set for your party, communicate to all your employees the company’s policy on harassment, dress code and other key office rules/policies. This can be done with memos, emails, social media or meetings. I would also suggest getting buy-in from your senior management to help set the tone. It is important to be mindful that not everyone celebrates the same holidays. Watch out when it comes to decorating keep it seasonal base not religious and no mistletoe, that’s a bad idea.

The office party should be voluntary. No one wants to be forced to attend a party. Make this clear so no one feels like they will be reprimanded for not attending. Also, by making it voluntary reduces the chances of non-exempt staff from filing a wage complaint down the road. No one wants a Department of Labor issue to start 2018 with.

Gift exchanges should be optional. I think it’s best not to open this can of worms – Goggle Matt Lauer Christmas Gift, don’t be a Matt! However, if employees want to exchange gifts let them do it on their own, HR can provide some guidelines of what is acceptable and what appropriate price ranges are. In the past, I provided my team with gift cards to stores or food chains they liked. One year, I treated my team to lunch at a nice restaurant.

Do your best to have a menu that can accommodate different diets and allergies. If serving alcohol, make sure to give them all they want. Just kidding. First rule of thumb - no open bar VERY bad idea. It is a good idea to give a limited number of tickets (2 tickets are a good rule of thumb) that can be used for alcohol. Limit the total time the bar is open for your guests. Provide plenty of non-alcoholic drinks giving folks other options this will pay off later in the night. Work closely with the vendor to make sure they refuse service to folks who appear intoxicated. The vendor should check IDs and provide wristbands for all legal-age drinkers. Lastly, have a few folks be the designated observers to see who is intoxicated and help them get transportation home using taxi/UBER or carpool. You really need to have a few folks at the party that are alcohol free to help keep an eye on things.

Hopefully your party went well, and everyone behaved themselves, had fun and got home safely. If you do get complaints from employees about the party, make sure you document the issue and take the appropriate action in a timely manner. Remember, claims of harassments should be handled in a prompt manner.

Thanks for reading! I wish everyone a happy holiday season and a wonderful 2018! Be good and practice safe HR. Until next time.


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Social Media and Recruiting

Posted By Cindy Hesch, Thursday, September 21, 2017

Social Media and Recruiting

By: Scott Mara, SHRM-CP, PHR-CA

Recruiting great talent takes a lot of effort, energy, time and financial resources. That is why it is so important to do all you can to keep your top talent happy and engaged. However, there will be a time when you need to recruit for a new employee or to replace one that left. Social media has become the primary recruiting strategy being used by many organizations. I bet everyone reading this blog belongs to LinkedIn or has at least one of the following social media accounts: Facebook, Instagram, Twitter, or YouTube. We all use these accounts every day. This process allows talent recruiters the ability to reach large amounts of potential candidates in a quick manner even the ones who are not actively looking for a job.

              Social media allows business to get the word out quickly about job openings and it allows them to tell their story and describe their culture. Many companies have created departments devoted to creating and monitor their social media presence. Companies post videos, photos and messages to about their organization to potential customers and employees. This is cool. You can see what it would be like to work for that organization before being interviewed. Social media also helps build the company’s brand.  According to Villanova School of Business, “Social Media can also help companies streamline employee engagement, keep an eye on the competition and perform a variety of other HR functions” Villanova calls this Social HR (1).

            Social media allows the HR professional to monitor what potential candidates and customers are saying about their business. It also helps keep companies honest. If we are not training our employees correctly no doubt we will see an embarrassing incident go viral and make our company look bad. Just look at the airlines. Our customers can use social media to complain about the bad service they received by an employee. I’ve used Twitter to complain about a customer representative at a car rental company within a rather short time frame received apology and a credit.

            In order to be effective in the social media environment, HR should work closely with their business partners and C-Suite. HR should have a voice in the social media presence. HR needs to help craft the message the company wants potential candidates to see, i.e., culture, work environment, and benefits. HR also needs to figure out which social media platforms should be used. Not all platforms should be used equally. Know your audience and help control costs. HR needs to help control the message, do not let everyone post on social media – don’t be that company with the embarrassing post. Train your HR professionals on social media. According to Jonathan Segal in his article Legal Trends Social Media use in Hiring: Assessing the Risks (2) he recommends seven tips to help minimize risk:

1.    Never ask candidates for their social media passwords

2.    Do not let line managers check candidate social media profiles, HR should take the lead on that

3.    Only check candidates’ social media presence after the applicant has been interviewed

4.    Do not look at only select candidates’ social media profiles

5.    Document the process and hiring decisions

6.    Consider the source, only look at what the candidate posted not what others have posted

7.    Be aware of your states laws pertaining to social media

Social media is a great tool, but use it wisely. Be proactive in developing and implementing your social media strategy. One last tip, I always recommend working with your legal counsel when dealing with complex issues that are always evolving. Be safe and reduce your legal exposure. Practice safe social media! Thanks for reading, until next time.


1. “Utilizing Social Media for Social HR Recruiting” 2017. Accessed on 9/19/17.

2. Trends Social Media Use in Hiring: Assessing the Risks. By Jonathan A. Segal Accessed on 9/19/17.

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The One Day Walk Off and Some Key Things to Know

Posted By Cindy Hesch, Sunday, August 27, 2017

The One Day Walk Off and Some Key Things to Know

By: Scott Mara, SHRM-CP, PHR-CA

                The United States saw unions forming around the mid-18th century (1). Workers believed they needed a voice to negotiate on their behalf with management. Unions promised workers better wages, improved working conditions and other benefits. Union membership peaked in the early 1960’s. According to the Department of Labor, Union membership rate in the United States for 2015 was 11.1% and the numbers of workers belonging to Unions was 14.8 million (2).

In the past, one tactic that Unions used for leverage was the strike. Strikes were used to get management to negotiate with the Union, in some cases strikes were also used to get government to enact new laws or change public policy for workers. Strikes could last for weeks or months. Today, social activists, community leaders, and Unions have changed tactics and now are using the one day walk off as a tool to get their message out and force companies and/or government agencies to act. Unions and others realize people cannot afford to be on strike for extended periods of time. In the past few years we started seeing various movements start such as the Fight for Fifteen, A Day Without Immigrants, A Day Without a Woman, and May 1 Strike, just to name a few. These movements were to get support for increased wages/benefits or to change government policy. One thing is for sure, Human Resources will find themselves right in the middle when the next walk-off happens; to be ready for the next walk off there are a few things you need to know.    

Is the one day walk off protected by the National Labor Relations Act (NLRA) as concerted activity? It might come as a surprise to you that the NLRA can be applied to both union and non-union employees which means you can’t take adverse action against the employee (2). The main question that needs to be addressed is: does the walk off relate to working conditions, wages and/or benefits or is it a politically motivated? The NLRA only protects employees who are engaged in lawful concerted activity that is related to work issues. Workers who protest or strike for political reasons are not afforded protections by the NLRA (3). Like many things in Human Resources today, you need to make sure you consult with a good labor attorney.

            During walk offs or strikes employers have the right to continue their business operations. Human Resources and Operations should work together and develop a plan. Key points to know:

·         Monitoring industry social media sites (not employees’ social media) may give you a heads up that a walk off is being planned. Keeping your ears open and listen to employees.

·         Have a business continuation plan ready. This may involve assigning managers/bringing in temp workers to help cover shifts or have modified work hours. If the walk off is a protected concerted activity your workers have the right to come back to work.

·         Remember the National Labor Relations Board (NLRB) has consistently upheld worker’s rights to complain about their working conditions and organize protests so before you discipline an employee for social media posts consult with your attorney.

·         While employees are in a public place protesting don’t monitor or record them. This might imply you are gathering information on them to be used later in terms of taking an adverse action against them.

·         If you have a public relations department make sure to coordinate with them to present a standard company message concerning the walk off. Also funnel all information requests to the public relations department. No lone wolfs here.  

·         If an employee simply says they missed work because of the walk off that was not protected as concerted activity you may be able to apply your attendance policy in this situation. If the absence occurred while the walk off was related to working conditions then the absence is protected. Tread carefully and work with counsel in advance of the walk off.

·         If managers see employees walking off their shift in support of the walk off, have the manager and a witness ask the employee why h/she is leaving try to determine the reason(s). If work related, offer to have them discuss their concerns with management.

·         Don’t allow managers or supervisors to threaten employees. Always act professional. If the discussion becomes “heated” take a small break or walk away.

·         Employees will lose their protection from the NLRB if they engage in threatening behavior, physical assaults, destruction of property. Best practice is to contact the police. Before implementing any adverse action against employees; a thorough investigation should be conducted and your labor attorney should be involved.

·         Conduct training for supervisors and managers on union avoidance, how to handle walk offs and protests. Make sure they know the Do’s and Don’ts.

·         Conduct employee satisfaction surveys at least annually although quarterly allows you to address problems before they escalate.

Dealing with walk offs, protests or strikes can be overwhelming. However, being prepared and informed is your best defense. The NLRA is a complex piece of law and it is ever changing. Working with an experienced labor attorney is critical. They can help guide you and help you stay out of trouble.


1.     A Brief History of Unions: How Unions Have Fought for Fairness at Work Over the Years.

2.     A Brief History of Unions: How Unions Have Fought for Fairness at Work Over the Years.

3.     Employers Advised to be Careful Dealing with Immigrant Protests. By Jacob M. Monty of Monty & Ramirez, LLP. February 15, 2017. 

4.     What Employers Need to Know about the Day Without Immigrants Walkout. By Fisher Phillips. February 15, 2017.




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