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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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‘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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Insights from ICA Hearing on Prop 206 Paid Sick Time Law

Posted By Cindy Hesch, Wednesday, August 9, 2017

Insights from ICA Hearing on Prop 206 Paid Sick Time Law

By Erin Norris Bass

On August 8, 2017, the Industrial Commission of Arizona held a hearing to take public comments on its proposed rules interpreting the Fair Wages and Healthy Families Act, better known as Prop 206.  During the hearing, the ICA answered a number of questions regarding the paid sick time (PST) law.  A few insights from those answers:

  1. If an employer already provided more than the required amount of PST at the beginning of the year and some employees used all of their PST before July 1, 2017, the ICA opined that an employer must provide additional PST as of July 1, 2017.  The ICA stated that the employer’s obligation to provide PST begins July 1, 2017, regardless of what PST it provided before that date.
  2. The ICA said that employers must allow employees to use PST for scheduled working time outside of the employee’s regularly-scheduled shift, such as scheduled overtime. The ICA also said that employees could use PST if they would have worked “call in” time but-for needing sick time, based on an estimate of how long the employee would have worked.
  3. The ICA said it would consider whether employers can implement a policy that requires employees to use all paid time off—e.g., PST and vacation time—before taking unpaid time.
  4. The ICA said that employers can require employees to use PST when out on FMLA leave.
  5. The ICA expressed concern at employers converting previously-accrued vacation time to PST to comply with the law (in contrast with providing additional paid time off that an employee could use for both vacation or sick days).  It said it would further consider the issue, and suggested the employer may need authorization from the employee to convert PTO.
  6. The ICA also said it would consider providing a sample PST policy.


Although the ICA’s comments provide guidance, employers should proceed cautiously when making decisions based on them.  The ICA’s comments and proposed rules do not have the force of law, and a court could ultimately interpret the Act differently. 

The ICA’s next likely step in the rulemaking process will be to submit its proposed rules for review by the Governor’s Regulatory Review Council (GRRC).  The GRRC then has 90 days to review and approve the rules, in whole or in part.  The rules take effect 60 days after the GRRC’s approval. 

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2017 Workplace Wellness Trends

Posted By Administration, Thursday, July 27, 2017
Updated: Tuesday, May 30, 2017

2017 Workplace Wellness Trends

By: Cory Jorbin, HUB International


Wellness programs have grown in popularity among employers in recent years. The main goal of these programs is to improve wellness among employees, which hopefully leads to lower healthcare costs. From a compliance perspective, wellness programs present employers with design challenges. In order to avoid compliance challenges associated with collecting health information, or tying participation to health insurance premiums, there has been a gradual shift from health related programs to focusing on providing benefits to employees in hopes of driving overall engagement and employee satisfaction. Here are three of the top trends for wellness programs for 2017:


Financial Stress and Wellbeing

Stress is the number one driver of lost productivity, and finances are the top driver of stress. When employees are overwhelmed by their financial situation, they’re less likely to prioritize healthy behaviors like eating well, exercising and not smoking. Many employers are responding to this “stress epidemic” by including a financial component within their wellbeing programs. Possible ways to address this are access to financial planning services, budgeting and debt management education, and the importance of financial planning for life events.


Diverse Workforce Impact: Cultural and Generational Differences

As workforce demographics continue to change, many employers struggle with how to meet the needs of today’s multi-cultural and multi-generational workforce. In an effort to engage diverse audiences, more employers are positioning initiatives in a broader, more integrated fashion with a focus on employee’s overall wellbeing. A possible first step is to consider your workforce demographics and do not take a one-sized fits all approach with communications or programming.


Culturally Relevant Perks

Among the growing body of research showing that happy workers are more productive, companies are continuing to focus on cultivating a culture of health and wellbeing. In an effort to further enhance culture and employee engagement; many employers are offering unique employee perks in addition to traditional benefits. Finding the right perk means identifying what employees value. A perk that’s great for one company might not be as valued at another. Employers should determine the perks your employees will value the most. For example, millennial employees may be more attracted to companies with student loan repayment programs while baby boomers may place more value on long term care options.


A common theme among these trends is that they move beyond the traditional focus of health care spending and involve looking outside the box for new solutions to drive employee engagement. These trends also recognize that a one size fits all approach may not be the best solution among employers with diverse workforces. Designing both communications and perks around what employees might value and respond to best is truly the next step as companies focus on total wellness.  


Cory Jorbin is a Compliance Officer with HUB International focusing on ERISA, ACA, Cafeteria Plans, HIPAA, FMLA and related matters.

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Social Media and the National Labor Relations Board By: Scott Mara, SHRM-CP, PHR-CA

Posted By Cindy Hesch, Thursday, July 13, 2017

Social Media and the National Labor Relations Board

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

We live in a time that allows anyone with a smartphone or laptop to post selfies, comments, and videos. We can post pretty much anywhere and at any time. The list of social media platforms continues to grow. Admit it you probably use at least one of the following apps: Facebook, Instagram, Flickr, Snapchat, Twitter, LinkedIn, YouTube, e-mail, and blogs. Using these apps can be fun and keep us connected to our friends, associates and family, but the scary part is when our employees cross the line of appropriate communication. Granted, not all employees use social media for bad things. According to the Pew Research Center (PRC) (a nonpartisan think tank that conducts research on various social and technology issues facing society) the biggest reason employees (34%) use social media at work is to simply take a mental break from work. The others reasons according to PRC* are:

·         Connect with friends and family at work – 27%

·         Make professional connections – 24%

·         Get information that helps solve problems at work 20%

·         Build or strengthen personal relationships with co-workers 17%

·         Learn about someone they work with – 17%

·         Ask work related questions of people outside their organization – 12%

*Survey conducted Sept. 11-21, 2014. “Social Media and the Workplace.” Pew Research Center-

However, sometimes employees don’t think about or care who the audience is or the language they use to complain or vent about their manager, working conditions, co-workers, HR (yes even us), and wages/benefits. Companies can face legal and compliance issues if they respond incorrectly. The National Labor Relations Board (NLRB) has recently been getting more and more involved in social media cases. The NLRB in its current format is, in my opinion leans more to the left of center. However, recently new appointees have been named to the NLRB and hopefully will help get us back to the center. Only time will tell.

            What the heck is the NLRB? Well, the NLRB is an independent agency charged with enforcing U.S. labor law in relation to collective bargaining and addressing unfair labor practices. One phrase all HR professionals need to know is the Protected Concerted Activity (PCA). PCA gives employees the right to act together (two or more) to try to improve their pay and working conditions with or without a union. Employers may not fire, suspend or otherwise penalize employees for exercising their rights. NLRB has acknowledged that social media is a primary avenue for employees to engage in PCA – this is a big YIKES! Unfortunately, NLRB has looked the other way when employees use profane language or are highly critical of their manager on social media. NLRB has tended to give considerable “leeway” to the employee. See Three D, LLC (Triple Play), 361 NLRB No.31 (2014) case.

            So what should HR do? Well, according to George Patterson an employment attorney with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. employers should have social media and email policies in place. Patterson says these policies should have clauses that clearly outline what activities the NLRB protects and that the company will not interfere in any way with these rights. The policies must spell out precisely which social media activities that are not protected and may subject the employee to discipline, up to and including termination. Those activities are:

·         Disclosure of key proprietary information such as financial, marketing, strategic or other confidential information that does not relate to terms of employment.

·         Threats of violence, bullying, racist comments, or other comments that can create a hostile work environment.

·         Rumors or disparaging statements about the employer that the employee knows are false.

This area is very gray, I hate to say it but I suggest before drafting a social media policy you should seek legal counsel from an experienced Employment/Labor Relations attorney. The NLRB does offer these two points for employers to follow when drafting a social media policy:

·         Company policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law such as the discussion of wages or working conditions among employees.

·         Employee comments on social media are generally not protected if they are mere gripes not made in relation to the group activity among employees.

Gee, thanks NLRB these two points are so helpful!

Social media is a scary area for HR, for better or worse, it is here to stay and will only continue grow and evolve. Our employees will find new ways to push the boundaries forcing the HR professional to stay vigilant. The new board appointments may ameliorate some of the negative aspects in dealing with social media as well as taking our HR stress level down a few points. Make sure that you check your social media policies over or create one if you don’t have one in place. Again, it is highly recommended to have legal counsel help in this process. Make sure all your employees are aware and have acknowledged receiving the policy.  Till next time, thanks for reading!  


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Arizona Industrial Commission Issues Additional Guidance on Prop. 206 Paid Sick Time Law By Erin Norris Bass, Associate, Steptoe & Johnson LLP

Posted By Cindy Hesch, Wednesday, July 5, 2017

Arizona Industrial Commission Issues Additional Guidance on Prop. 206 Paid Sick Time Law

By Erin Norris Bass, Associate, Steptoe & Johnson LLP

Last week the Industrial Commission of Arizona (ICA) supplemented its proposed rules interpreting Arizona’s new paid sick time (PST) law under the Fair Wages and Healthy Families Act (the Act), better known as Prop 206. Among other noteworthy changes, the supplement provides some much-needed clarity on how the Act affects employers’ existing PTO policies. It also simplifies compliance for employers electing to front load at least 40 hours of PST or equivalent paid time off (24 hours for small employers).

Clarification on “Equivalent Paid Time Off”

With the addition of the defined phrase “equivalent paid time off,” the ICA’s proposed rules indicate that employers do not need to separately track or record PST if they give employees equivalent paid time off.  For example, the Act requires employers to record the amount of PST available to and used by each employee during that year to date. It was previously unclear if employers who provide equivalent paid time off were nevertheless required to separately track and record PST. The ICA’s supplemental rules clarify that employers can simply track and record equivalent paid time off.

Likewise, it was previously unclear if employers who provide equivalent paid time off were nevertheless required to carve out and reserve a minimum number of hours for employees to use for the Act’s specified PST purposes. The ICA’s supplement clarifies that employers with equivalent PTO policies do not need to reserve a block of time for PST purposes.

Clarification on Front Loading PST

The supplemental proposed rules incentivize employers to front load 40 hours of immediately-available PST or equivalent paid time off to each employee (24 hours for small employers). According to the ICA, employers who do that will be exempt from the Act’s carryover and additional accrual requirements. That is, if an employer front-loads 40 hours of immediately-available PST to each employee on January 1, 2018, the employer will not need to cash out or carry over its employees’ unused PST hours at year’s end. Instead, on January 1, 2019, the employer will simply need to front load 40 new and immediately-available hours to each employee.

Importantly, the exemption only applies to employers who front load at least 40 (or 24) hours to every single employee. The Act gives employers an alternative option to front load PST on an individualized basis in the amount an employee is expected to accrue that year, which may be less than 40 (or 24) hours for some employees. But, according to the ICA, those front-loading employers are not exempt from the Act’s carryover and additional accrual requirements.

Calculating the “Same Hourly Rate”

The ICA’s supplemental proposed rules clarify the calculation of the “same hourly rate” for salaried employees and provide an additional option for employees paid on a commission, piece-rate, or fee-for-service basis.

For salaried employees, the ICA clarified that an employer does not need to provide additional PST pay if a salaried employee’s use of PST does not reduce the employee’s regular salary that pay period. When using PST will reduce the employee’s regular salary, the proposed rules provide two methods to calculate the “same hourly rate,” in order of priority: (1) all wages earned during each pay period covered by the salary divided by the agreed-upon work hours during each pay period, if previously established; or (2) all wages earned during each workweek covered by the salary in the current year divided by 40 hours.

For employees paid on a commission, piece-rate, or fee-for-service basis, the first four proposed calculations remain the same, but the ICA added a fifth option: the hourly average of all compensation earned in the previous year based on hours actually worked or a 40-hour workweek.

How Should Employers Proceed at This Late Date?

Because the PST law went into effect on July 1, Arizona employers have already created and implemented PST policies and practices without the benefit of this additional clarification from the ICA. Employers should keep in mind that the ICA’s proposed rules are not final, and may change again before they go into effect. As long as an employer’s existing PST plan complies with the Act, the employer can and probably should proceed as planned for the time being. But, employers should closely monitor the ICA’s ongoing rulemaking process and consider updating their PST policies and practices when the rules go into effect.

Employers have until August 8 to submit written comments on the proposed supplemental rules.

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Does Crying Put an Employer on Notice of the Need for FMLA Leave?

Posted By Cindy Hesch, Thursday, June 29, 2017

Does Crying Put an Employer on Notice of the Need for FMLA Leave?

By Lorie Birk, Esq, SPHR, SHRM-SCP

HR Law Works, LLC

While we may be crying over the continued heat, there has been an interesting case in Illinois about crying and FMLA, Valdivia v. Township High School District 214, 2017 U.S. Dist. Lexis 73647.

The story begins with Ms. Valdivia being a secretary at Elk Grove High School from May 2010 through June 2016.  Ms. Valdivia indicates that her co-workers regularly made derogatory remarks about Hispanic people and students.  As it happens, Ms. Valdivia is Hispanic and she found the comments degrading, hostile and offensive.  These comments increased in frequency in September 2014 and continued.  Ms. Valdivia complained to the principal about this and nothing was done.  In March 2016, Ms. Valdivia transferred to another school in an effort to remove herself from the hostile work environment.  These types of comments continued at her new job.  Ms. Valdivia became very distraught and began crying uncontrollably at work.  In one instance, she told her supervisor that she was overwhelmed and afraid and unsure if she could continue working.  Due to her continued concerns and distress, several individuals in leadership including her supervisor, indicated to Ms. Valdivia that she had to decide between continuing or resigning her employment.  After that, Ms. Valdivia again approached her supervisor and explained she was confused and overwhelmed, had not slept in weeks, had not been eating, and was losing weight.  Again, she was told she needed to decide between continued employment and resigning.  Ms. Valdivia does end up providing a written letter of resignation.  Five days later she tries to rescind it but the school district indicates the position has already been filled.  Less than two weeks after her resignation is effective, Ms. Valdivia was hospitalized for four days and diagnosed, for the first time, with depression, anxiety disorder, panic disorder and insomnia.  She was cleared for secretarial work by her physician after treatment.

At first you are probably thinking there is a race discrimination claim in this story.  That is covered in the case but let’s focus on the FMLA issue.  Ms. Valdivia sued for interference with her FMLA rights, in addition to violations of Title VII of the Civil Rights Act.  Ms. Valdivia argued that her supervisor and others who had known her for several years should have known she had a medical condition that made her unable to perform her job based on her behavior and what she said.  Let’s refresh our memory on what the notice requirements are for requesting FMLA.  Per the regulations an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave.  In addition, the regulations state that when an employee seeks leave for the first time, the employee need not expressly assert rights under the FMLA or even mention FMLA.  Court decisions have indicated that the notice requirement is not demanding.  The court found that there was sufficient information for Ms. Valdivia to pursue her FMLA claim as any reasonable person would conclude that Ms. Valdivia may need FMLA leave.  The court based that on not only the uncontrollable crying, but the statements that Ms. Valdivia made about being overwhelmed, confused, not having slept in weeks, not eating and losing weight.  The court stated that the fact that Ms. Valdivia was not diagnosed with a medical condition until a couple weeks after her employment ended is not relevant.

So, I do not believe crying alone puts an employer on notice.  It was that in combination with the other facts that proved to be the issue for the employer.

This case does highlight the need to train managers on not only what is FMLA but when FMLA may be triggered and what to do next.

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The Hidden Danger in Prop 206

Posted By Cindy Hesch, Thursday, June 15, 2017

The Hidden Danger in Prop 206

By Erin Norris Bass, Associate, Steptoe & Johnson LLP

As employers hustle to comply with the Prop 206 paid sick time provisions before they take effect July 1, one other aspect of the law presents a little-discussed hidden danger.  If an employer takes an adverse employment action against an employee within 90 days of the employee using paid sick time, the law presumes that the action was unlawful retaliation.  The employer can successfully defend itself only by meeting a stringent evidentiary standard. In effect, the law imposes a “just cause” standard on employers to justify their employment decisions.

Take an example. Employees can earn and use up to 24 or 40 hours of paid sick time per year, depending on the size of their employer.  If an employee takes an hour of paid sick time every 90 days, the statute presumes unlawful retaliation if his employer takes an adverse employment action against him at any point in the year.  Adverse employment actions include a range of negative actions in the workplace, such as discharge, suspension, discipline, reduction of hours, schedule changes, or a denial of a transfer request.  As a result, the law’s “presumption of retaliation” gives every disgruntled employee in Arizona an opportunity to bring a charge against his employer for any perceived negative action before the Arizona Industrial Commission at taxpayer expense.

If the employee brings a retaliation claim against his employer, the statute requires the employer to present “clear and convincing evidence that such action was taken for other permissible reasons.”  That’s a higher evidentiary burden than the “preponderance of evidence” standard employers typically carry in employment law cases.  If the employer cannot meet that high burden, the employer must reinstate the employee (if discharged), pay back wages, and pay penalties of at least $150 per day since the “retaliation,” among other potential remedies. The employer must also pay the employee’s attorneys’ fees and costs.

So what should employers do?  Employers should develop internal protocols to determine whether an employee took paid sick time or engaged in other protected activity under the law within 90 days before the employer takes an adverse employment action. If the answer is yes, the employer should review the decision under a just-cause standard, asking whether:

1.       The employer based its decision on a reasonable policy;

2.       The employee knew of the employer’s policy;

3.       The employer conducted an investigation;

4.       The investigation was fair and objective;

5.       The investigation found strong evidence of the employee’s policy violation;

6.       The employer consistently applied the policy; and

7.       The discipline is reasonable compared to the violation.

Employers should partner with experienced legal counsel to ensure a defensible decision.  Better to be pennywise than pound foolish:  the time and money spent upfront making the decision could save significant money down the road in legal fees, back wages, and fines.

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Cafeteria Plan Responsibilities for Employers under Section 125 of the Internal Revenue Code

Posted By Administration, Thursday, June 1, 2017
Updated: Tuesday, May 30, 2017

Cafeteria Plan Responsibilities for Employers under Section 125 of the Internal Revenue Code

By: Cory Jorbin, HUB International


A cafeteria plan is much what it sounds like; a cafeteria of sorts that employers can use to help employees pay for certain expenses. Instead of food and drinks, this cafeteria is stocked with benefits like health, dental and vision insurance and flexible spending accounts (medical and dependent care). These plans are attractive to both employers and employees as they offer tax benefits. Employees can use pre-tax dollars to pay for benefits, giving them more take-home pay. Lower taxable income for employees means lower payroll taxes for employers. Here are a few of the potential issues employers should consider when creating and maintaining a cafeteria plan.


Writing Requirement

Under Section 125(d) the cafeteria plan must be in writing. These are often referred to as Premium Only Plan or POP documents. In the case of a Flex Spending Arrangement, a separate FSA document would be used. This mirrors the ERISA requirement that plans have a written plan document and serves a dual purpose. First, it provides a record for both the employer and employee of what benefits and provisions are actually contained within the plan. Second it allows for pre-tax payment of benefits. Failure to properly maintain a POP document can result in the plan losing its tax advantaged status.


Plan Adoption

Once the POP document is created and finalized, it should be formally adopted by the entity.  Adoption of a plan should generally follow the same process that an entity uses for other major business actions. For a corporation this may mean approval by the board of directors, but this can vary between entities. The Articles of Incorporation, Bylaws or other governing documents as applicable should be referenced to determine the appropriate means of adoption. Failure to properly adopt the POP document can lead to potential issues later on.


Plan Selection

Employers have some flexibility as to which benefits employees may pay for with pre-tax dollars. Typically employers include medical, dental and vision plans as these tend to have the highest cost and thus provide the greatest tax benefits. Voluntary benefits such as STD, LTD, accident and critical illness coverage may potentially be paid for pre-tax as well. Voluntary benefits pose a unique dilemma for employers since amounts paid out under these policies are generally taxable to the employee when an employee pays for them with pre-tax dollars. As a result of this, many employers do not include these in their pre-tax benefits. The idea being that an employee who receives payments under a disability policy receives a greater benefit when these payments aren’t taxed than they would from pre-tax premium deduction. Employers should review individual plan inclusion with their attorney or CPA.


Plan Changes

Cafeteria plan elections are generally only allowed to be changed once per year, during the plan’s annual open enrollment period. There are two exceptions to this rule, changes when HIPAA Special Enrollment Rights are triggered, and changes under the IRS Permitted Election Changes under Treasury Regulation 1.125-4. While HIPAA Special Enrollment rights are required where applicable, plans have flexibility to adopt all, some or none of the permitted election changes. Plans that adopt these changes must allow participants to change their cafeteria plan elections mid-year when one of these changes is triggered. Whether a permitted change is triggered often depends on small details, which requires employers to pay special attention to these items.


On a final note, plans must obtain an annual authorization (signed or electronic) from employees consenting to their payroll deductions. Cafeteria plans can provide great benefits for employers and employees. Plans should take these and other important items into consideration when establishing a plan and its continued maintenance.



Cory Jorbin is a Compliance Officer with HUB International focusing on ERISA, ACA, Cafeteria Plans, HIPAA, FMLA and related matters.

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