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All I Really Need to Know About HR I Learned in Kindergarten?

Several human resources managers I work with sometimes refer to employees as their “children” and joke that at times (particularly when dealing with their “problem children”) they feel more like grade school teachers than HR managers. A recent study reaffirms the inherent truth in this analogy. 

Childish behavior is not confined to elementary school playgrounds, but is prevalent in today’s workplace, according to a new survey by Harris Poll on behalf of CareerBuilder. Over 75 percent of employees report that they have witnessed some type of childish behavior among colleagues in the workplace. Over half of those surveyed (55%) report whining by colleagues. (The only thing surprising here is that the number is not higher.) Just under half (46%) have witnessed co-workers pouting when something didn’t go their way. (That seems about right.) But what surprised me are the high rates of truly juvenile behavior, such as: making a face behind someone’s back (35%); forming a clique (32%); starting a rumor about a co-worker (30%); storming out of the room (29%); throwing a temper tantrum (27%); and refusing to share resources with others (23%). No wonder HR managers sometimes feel like elementary school teachers!
So how big is the problem? Dale Carnegie taught that when dealing with people, you need to remember you are not dealing with creatures of logic, but creatures of emotion. When humans are involved, emotions can trigger illogical, even childish, behavior. When such behavior is demeaning or distracting to others, it is unquestionably inappropriate. Childish behavior is bad      Continue Reading...
Bank Misclassified Appraisers as Exempt from Overtime Pay, Court Says

This summer a federal court ruled that a class of current and former residential real estate appraisers were improperly classified as exempt from overtime pay under the Federal Labor Standards Act (“FLSA”). In doing so, the court rejected the bank’s argument that the appraisers fell under the administrative, professional, and highly compensated employee exemptions.

The case involved two classes—one comprised of residential appraisers, and another made up of review appraisers. Both groups of appraisers alleged that the bank misclassified them as exempt from overtime under state and federal law. Last fall the parties settled the claims of the review appraisers for approximately $5.8 million, leaving only the residential appraisers pursuing their claims.
Administrative Exemption. Under the FLSA, an employee qualifies for the administrative exemption if the following three requirements are met: (1) the employee is compensated on a salary or fee basis meeting a certain threshold; (2) the employee’s primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) the employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
The parties disputed whether the appraisers’ work directly related to the bank or its clients’ general business operations. The court agreed with the appraisers’ argument that their work essentially involved production work, with no impact on the bank’s policy decisions. The court rejected the bank’s argument that appraisers engaged in advisory and consulting services, conducted business research, and      Continue Reading...
New Farmworker Safety Rule Issued

The Environmental Protection Agency (EPA) recently issued a farmworker safety rule related to pesticide use.  The new rule will likely take effect in the early part of 2017 as the full version is set to be published in the next 60 days with a 14 month implementation period before taking effect.  Some highlights of the new rule include:

  • Employees under the age of 18 will not be permitted to handle or apply pesticides.
  • Pesticide training must take place on an annual basis as opposed to once every five years.
  • Employees must be trained on how to minimize the risk of carrying home residue of the pesticides in use.
  • The usage of personal protective equipment will be expanded as well as the testing and monitoring of the equipment.
  • Employers will be required to maintain records of all pesticide use for at least two years.
  • Farm workers will now have whistle blower protections.

With these changes set to take place in 2017, employers that use pesticides will want to review the full rule upon publication and begin implementing the changes along the way. 

Tricks at Work Are No Treat for Employers

Halloween is a lot of fun for both kids and adults.  When else can we wear inappropriate costumes, gorge on unlimited candy, and create a “Walking Dead” display in our front yard?  But when the spectral mist of Halloween creeps into the workplace, things can get really scary. Here are some real-life Halloween work-place mishaps that left employers haunted:

  • A retail store put up a notice encouraging employees to come to work in costume on Halloween.  About half participated, while the other half showed up in their regular clothes.  Donna Meraz was one of the employees who didn’t wear a costume, claiming that doing so conflicted with her religious beliefs.  Later that year when Meraz’s work hours were reduced, she sued the company alleging she was retaliated against for her religious beliefs after refusing to work in costume on Halloween.  The court gave the employer a treat, dismissing Meraz’s retaliation claim. 
  • An employee brought a retaliation claim against her employer, alleging she was fired after complaining about a male supervisor who constantly made suggestive remarks about female employees.  On one occasion, a woman wore a cat costume to work on Halloween and the male supervisor allegedly said that he “liked her tail.”  Unfortunately, the male supervisor got up to other hijinks like this and the court ordered the case to a jury. 
  • Several black and Hispanic employees of a city parks department brought class action      Continue Reading...
Remembering Yogi

America lost one of its most-loved  and iconic sports legends when Yogi Berra passed away at age 90 earlier this week. Yogi was truly one of a kind—as much of a character as he was a great catcher. Make no mistake about it, Yogi was one of the best baseball players ever: 15-time All Star; 10-time World Series winner; and three-time MVP. He went on to become a successful manager, leading both American and National League teams to the World Series. But Yogi became equally famous for his “Yogi-isms,” colloquial expressions that seem nonsensical but convey deeper  meaning—bits of wisdom and wit that get to the truth in a hurry. Here are some of the most memorable Yogi-isms and what human resources professionals and personnel managers can take away from these nuggets. 

  • “You’ve got to be careful if you don’t know where you’re going ‘cause you might not get there.” Let’s face it, employment law is complicated. You need to understand the law, and get help from your lawyer when you don’t, to know where it is you want to go (unless you want to go to the courthouse).
  • “We’re lost, but we’re making good time.” Activity is not the same as progress. Once you know where you want to go, make a plan and set specific and measurable goals to get you there. 
  • "It’s déjà vu all over again.” If you keep doing the same things you’ll keep getting the same results. Study best HR practices      Continue Reading...
OFCCP Publishes Final Pay Transparency Regulations for Government Contractors

The OFCCP recently published final Pay Transparency regulations for government contractors. Mandated by Executive Order, the new regulations protect applicants and employees from adverse treatment for sharing pay information, establish employer defenses to pay-transparency discrimination claims, and impose publication requirements on contractors. 

Regulations Prohibit Pay-Transparency Discrimination
The regulations add a new anti-discrimination provision to the Equal Opportunity Clause that will become part of every government contract and subcontract. That provision states:
The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.
“Compensation” is broadly defined to include not only salary and wages, but also overtime pay and shift differentials; bonuses, commissions, and profit sharing; vacation, holiday, insurance, retirement and other benefits; and stock options and awards. Unlike the NLRB’s recent pay-transparency rules, this nondiscrimination provision applies to all employees, including supervisors and managers.
In pursuing pay-transparency discrimination claims, the OFCCP will apply the “a motivating factor” standard. This means the OFCCP can prove discrimination if pay transparency was a motivating factor in an adverse employment decision, even if other legitimate grounds also animated the contractor’s decision. The OFCCP also warns that, in some cases, it will apply the McDonnell Douglas burden-shifting approach to show that an employer’s proffered justification for its actions is a pretext for discrimination. Unlike Title VII or other discrimination claims, only the OFCCP—not individual employees—can      Continue Reading...
The Perils of HR: Beware of Texting Applicants

For most somewhat technologically adept members of society, the use of text messages to conduct business has become somewhat common.  It is an easy and quick means of communication.  It is often viewed more informally than an email or other written correspondence.  Putting aside all the standard warnings about the use of text messages for business purposes, HR personnel must now be wary of other more scary concerns. 

A human resources manager in the Chicago area recently reported receiving nude selfies from an applicant after making a conditional offer of employment to the individual.  As the story goes, the man indicated they were accidentally sent to the wrong person.  This does highlight the danger of using text messaging for official workplace communications.  My guess is the HR manager and the candidate had exchanged relevant work-related texts.  This led to the candidate confusing the phone numbers when sending his photos.

So next time you pick up your phone and contemplate texting someone about work-related issues, think twice.  Maybe it would be a better idea to send an email instead.

Franchisors, Parent and Sibling Entities, and Employers Who Use a Staffing Agency, Subcontractor, or Vendor: Beware! You (Perhaps) Just Became a "Joint Employer"

A new ruling by the National Labor Relations Board (NLRB) threatens to destroy the line separating corporate entities and the corresponding limitations on liability by dramatically expanding the definition of “joint employer” in the labor context.

For more than three decades, the NLRB had applied the same joint-employer standard: where one employer exercises sufficient direct control over the terms and conditions of another’s employees, they are “joint employers.” This means that both employers have collective bargaining obligations with respect to the joint employees, face potential liability for unfair labor practices or breach of a collective bargaining agreement, and are subject to economic protest activity, such as strikes, boycotts, and picketing.
Background – Union Alleges that Company Is Joint Employer with Its Staffing Agency
A Teamsters union sought to organize the employees of a recycling center in California. The workers were employed by a staffing agency, Leadpoint Business Services, and worked on the premises and alongside employees of Browning-Ferris Industries (BFI). The union argued that BFI was a joint-employer, but the Regional Director rejected that argument under existing precedent. While BFI had contractual rights to control certain aspects of the employment relationship, it had not actually exercised those rights, and its control was so indirect, limited, and routine, that BFI could not be considered a joint employer.
On appeal, the NLRB, in a 3-2 decision, abandoned the current joint employer test in favor of a much broader, union-friendly test, and concluded that BFI and Leadpoint were joint employers.
NLRB’s New Test – It’s All About      Continue Reading...
Federal Contractors Will Have to Provide Paid Sick Leave

On Labor Day, President Obama issued an Executive Order (“EO”) directing the Secretary of Labor to issue regulations by September 30, 2016, implementing mandatory paid sick leave for employees of federal contractors and subcontractors. Assuming regulations are issued on schedule, the rules will apply to new federal contracts beginning January 1, 2017.

Covered Contractors
Subject to minimum thresholds, the EO applies to new contracts if employees’ wages under the contract are governed by the Davis-Bacon Act, the Service Contract Act, or the Fair Labor Standards Act, and if the contract fits into one of the following four categories:
  • procurement contracts for services or construction;
  • contracts for services covered by the Service Contract Act;
  • contracts for concessions; or
  • contracts entered into with the federal government in connection with federal property or ands and related to offering services for federal employees, their dependents, or the general public. 
Under the EO, employees must receive at least one hour of paid sick leave for every 30 hours worked, up to 56 hours each year. Contractors may adopt policies limiting the total number of hours each employee is able to accrue per year, so long as employees are entitled to the minimum 56 hours. Employees may use this sick leave to care for themselves or for a family member (including preventative care) and for absences resulting from domestic violence or sexual abuse.
Employees may request leave orally or in writing and must provide      Continue Reading...
Amputation Emphasis Program Gets Update

This summer OSHA updated its national emphasis program designed to reduce the occurrence of amputations in the workplace.  The directive sets out a number of program requirements as well as adding a number of new manufacturing industry groupings to the scope of the program.  Here are a few highlights from the directive:

  • For worksites newly covered by the program, OSHA is required to engage in outreach efforts to the employer prior to conducting an inspection under the program.
  • Facilities with an amputation in the last five years can be added to the list of target entities under the program.  In other words, if your facility is not covered by the emphasis program, but has had an amputation, OSHA can add you to the list of targets for random inspection.
  • The new directive utilizes the NAICS code system as opposed to the old SIC code system.  This change will result in differences in the master list of potential employer targets for inspection.  You can find the list within the directive on OSHA's website here.

For employers falling within the industry listing contained in the directive, your facility is on a list OSHA will target for random inspections.  It is well worth your time to take a closer look at your machinery that presents an amputation risk.  As they say -- an ounce of prevention is worth a pound of cure.

How Will the Supreme Court's Ruling on Same-Sex Marriage Impact Kansas Employers?

The Supreme Court has had a busy summer. Between ruling in favor of religious dress accommodations in EEOC v. Abercrombie and Fitch, fashioning a new test to apply in pregnancy bias cases in Young v. UPS, and ensuring the viability of the Affordable Care Act in King v. Burwell, you’d think that the Supreme Court had given employers enough to contemplate. But the nine Justices waited until the end of their term to deliver one of the most hotly anticipated decisions all year in Obergefell v. Hodges. By a 5 to 4 margin, the Court held that state bans on same-sex marriage are unconstitutional. Now, same sex couples can legally wed in all 50 states, and presumably, will be entitled to the same state and federal marriage-related rights and benefits that opposite-sex married couples enjoy.

But the Obergefell ruling raises questions for many employers, who are wondering what employment-related benefits are now required for same-sex couples. Obergefell was not an employment case and did not directly address any employment law issues; however, employers can expect to feel some impact from the decision.

Currently, there is no federal law that prohibits discrimination on the basis of an employee’s sexual orientation or gender identity. The 50 states are a patchwork of varying anti-discrimination laws in that regard. Indeed, some states are a patchwork of laws among cities within the state. While some states and cities prohibit discrimination and harassment on the basis of an employee’s sexual orientation,      Continue Reading...

Government Contractors & Other Large Employers: It’s That Quarter Again!

By the end of the third quarter of each year (September 30), the government requires certain federal contractors and other large employers to disclose demographic data about their workforce. Are you ready to file? 

What reports have to be filed? 

The federal government mandates that certain employers disclose the demographics of their workforce in two different annual reports: 

  • The U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contractor Compliance Programs (OFCCP) require an EEO-1 Employer Information Report, which summarizes gender and race/ethnicity demographics.
  • The U.S. Department of Labor Veteran’s Employment and Training service and the OFCCP require a VETS-4212 Veterans’ Employment Report (which this year replaces the prior VETS-100 and VETS-100A reports), which summarizes protected veteran demographics. 
Who has to file?
The EEO-1 report must be completed by:
  • Employers with 100 or more employees (including smaller affiliate companies where the entire enterprise employs 100 or more employees) who are also subject to Title VII of the Civil Rights Act of 1964.
  • Federal contractors with a prime contract or first-tier subcontract amounting to $50,000 or more and with 50 or more employees. 
By contrast the VETS-4212 applies to all federal contractors and subcontractors with a contract or subcontract in the amount of $100,000 or more. 
What has to be reported?
The EEO-1 and VETS-4212 reports both present a snapshot of the demographics of your workforce at a single point in time. You may use the data from any pay period during the quarter      Continue Reading...
EEOC Issues Updated Guidance on Pregnancy Discrimination

The EEOC issued updated guidance with regard to the agency’s enforcement of discrimination under the Pregnancy Discrimination Act (“PDA”). You might recall that the EEOC originally issued guidance in the summer of 2014. In that original guidance, the EEOC took the position that the PDA requires employers to make accommodations to pregnant workers in the same manner that it does to other similarly situated workers. Thus, if an employer had a light-duty program it could not exclude pregnant workers from that program, even if the employer historically reserved light-duty positions for certain categories of employees, such as those injured on the job. 

This year, the Supreme Court issued its decision in Young v. UPS, which addressed some of the same issues the EEOC guidance attempted to clarify. In that case, Peggy Young was a delivery driver for UPS. When she became pregnant, her doctor placed her on lifting restrictions which would interfere with her ability to do her job, so Young requested light duty from UPS. UPS only provided light-duty work for certain categories of employees – those injured on the job, those with a disability, and those who lost their federal driving certifications. Since pregnancy didn’t fall within any of those three categories, UPS denied Young’s light-duty request and place her on leave without pay or benefits. 

Young sued under the PDA, arguing that UPS’s actions constituted sex discrimination based on her pregnancy. Young cited to the provision of the PDA that requires employers to treat pregnant women the same as      Continue Reading...

DOL Proposes Significant Increase in Required Salary for FLSA Exemptions

After over a year of waiting and wondering, the Department of Labor finally issued its proposed amendments to the white-collar exemptions under the Fair Labor Standards Act.  These are often referred to as the salaried exemptions because of the threshold requirement that the employee be paid on a salary basis at a minimum salary level.  As you may recall, the impetus for these changes was direction from President Obama that the exemptions were too many employees were being treated as exempt.  In other words, the stated goal of the proposed changes was to make sure that more employees will become non-exempt and thus entitled to overtime. 

DOL’s tool for effectuating that direction is to raise the required minimum salary for exempt status from its current level of $455 per week ($23,660 per year) to $921 per week ($ 47,892 per year).  The proposed changes also affect the qualifying salary for “highly compensated employees,” who are exempt under less rigorous duties requirements.  A highly-compensated employee will now have to be paid total annual wages (salary, bonuses, commissions, etc.) of at least $122,148 (an increase from the current $100,000).  In addition, the amended regulations will provide for annual updates to the requisite salary levels.  Of note, while the currently proposed changes target only the required salary levels, DOL said that it continues to look at whether changes to the job duties tests applicable      Continue Reading...

Supreme Court Upholds ACA Tax Credits in Federal Exchanges

In its much-anticipated decision in King v. Burwell, the Supreme Court has upheld the availability of the ACA's premium assistance tax credits for individuals purchasing insurance through a federally facilitated exchange, including the exchanges maintained for residents of Kansas and Missouri.

Background. This case addressed a seemingly simple proposition: Whether the phrase "an Exchange established by the State" meant only exchanges actually established and operated by one of the 50 states or the District of Columbia or whether it also included exchanges operated by the federal government in states that declined to establish their own exchanges. If the language meant only exchanges actually established and operated by one of the 50 states or the District of Columbia, the ACA's premium assistance tax credits would not be available to the residents of the 34 states that did not establish their own exchanges. This would have a ripple effect under the ACA by potentially limiting the impact of the individual mandate and the employer mandate and impairing the operation of the individual insurance market.

The Court's Analysis. The Supreme Court concluded that the statutory language (“an Exchange established by the State”) was ambiguous and that its meaning should be interpreted in the context of the broader structure of the ACA. It then held that the overall statutory scheme of the ACA compelled the conclusion that the tax credits should be available to individuals purchasing coverage through federally facilitated exchanges. Otherwise the individual insurance market would be destabilized in states with federally facilitated exchanges, likely leading to      Continue Reading...


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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