Tag Archives: SHRM

NLRB General Counsel Offers Guidance on Employee Handbooks

Unknown( Post was written by Allen Smith, J.D., manager of workplace law content for SHRM)

Employers need not read the tea leaves anymore about what employee handbook language the National Labor Relations Board (NLRB) general counsel considers to be prohibited. NLRB General Counsel Richard Griffin Jr. put the agency’s cards on the table in a March 18, 2015, report to NLRB regional directors that he said hopes “will be of assistance to labor law practitioners and human resource professionals.”

The general counsel is taking “an expansive view” of language that is prohibited by the National Labor Relations Act (NLRA), according to Steven Swirsky, an attorney with Epstein Becker & Green in New York City. And much of the language hasn’t been approved or disapproved by courts or the board, he added.

Nevertheless, reviewing the report should give HR professionals ideas on whether and how their policies should be changed, Swirsky added. He cautioned that employers “should not cut and paste,” as different companies will have different circumstances.

Unionized and nonunion businesses alike should pay attention. Swirsky said many employers tune out news about the NLRA because they think it applies only to unionized employers. A big reason for this report is to emphasize that the law also applies to nonunion environments, he remarked.

Confidentiality Rules

The following confidentiality rules are unlawful, and thus should not be included in any employee handbookd, Griffin said: Continue reading


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New Pregnancy Rules Require Accommodations

(This post was written by Allen Smith for SHRM. It has been edited for ease of understanding).

In its first major update of Equal Employment Opportunity Commission (EEOC) guidance on pregnancy discrimination since 1983, the agency on July 14, 2014, added provisions explaining when the Pregnancy Discrimination Act (PDA) and Americans with Disabilities Act (ADA) might require reasonable accommodations for workers with pregnancy-related disabilities or work restrictions.

Under the current guidance, Scott Fanning, an attorney with Fisher & Phillips in Chicago, said employers should be “cautious with pregnant employees. Treat them as you would anyone else.” He noted that under the guidance in terms of accommodations, pregnant employees with disabilities (which arguably might even include morning sickness or high blood pressure) have the same accommodation rights that any other individuals with disabilities would have.

Reasonable Accommodations

The guidance listed reasonable accommodations a pregnant worker with disabilities might need, such as: Continue reading

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Medical Marijuana, Picking Bad Managers & Turnover Signs

Three workforce issues I wanted you to be aware of:
images1. Medical Marijuana Laws: There is some confusion and uncertainty with the legalization of medical marijuana in Maine and Massachusetts, while federal law stills treats it as an illegal drug. Though I am not going to cover the regulations here (call me with questions), you should know that neither state requires employers to permit drug use in the workplace or tolerate employees who report to work under the influence. Again, call me regarding compliance, policies, drug testing rules and handling the conflicting requirements under state and federal laws.

2. Companies Picking Bad Managers: According to a Gallop study just released, companies fail to choose the right talent for manager positions 82% of the time. And, managers account for 70% of the variance in employee engagement scores. Gallop notes that bad managers can generally be blamed for most low morale of workers. As you know, low morale and engagement are the determining factors in productivity, quality and retention levels. Call me if you need help assessing candidates for supervisory positions as well as training and coaching your existing supervisors and managers.

3. Warning Signs that An Employee Is Likely to Quit: According to a Utah State University Study, there are clear warning signs that an employee is likely to quit within months. Some of the warning signs include:

  • Showing less interest in advancing in the organization
  • Seeming less interest in pleasing their boss than before
  • Acting more reluctant to commit to long-term projects
  • Exhibiting less interest in training and development
  • Offering fewer constructive contributions in meetings
  • Suggesting fewer new ideas
  • Doing the minimum amount of work needed

If you begin seeing this with one of your employees, you may have an employee who is preparing to quit. Give me a call and we can discuss how best to handle this.

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HR, Line Managers: Can’t We All Just Get Along?

(I was interviewed and quoted in this article that appeared in SHRM Online, written by Pamela Babcock on 1/11/2014)

Conflicting priorities, convoluted or outdated protocols, and mutual frustrations largely due to budget cuts and time constraints can hamper relations between HR and line managers. But there are things that can be done by those on both sides to quell the animosity and reduce the inefficiencies inherent to such situations, according to a recent report and experts on the subject.

A November 2013 Hay Group study, Bringing the Line to Life: How Activating the Relationship Between HR and the Line Can Impact Organization Performance, suggests that tension between HR and line managers is stifling employers’ ability to design and implement workforce strategies to achieve business objectives.

The poll of 750 HR directors and line managers in the U.S., U.K. and China found that HR professionals sometimes feel overburdened by everyday requests and queries from line managers. In fact, a third of HR directors estimate that their team spends up to one-third of its time dealing with such matters, which 43 percent agree is too much time and that it prevents them from taking a more strategic role within the company.

Adding to their woes, 71 percent of HR directors said line managers want immediate responses to queries and “are unforgiving if the process takes longer,” the report notes.

View from the Flipside

Line managers see things differently. An overwhelming 75 percent who responded said HR keeps information and data “close to its chest,” and approximately half (48 percent) said HR is slow to respond to their requests. That may be why more than one-third (39 percent) said that Google is a better and more immediate source of information than HR.

Meanwhile, more than half of respondents (58 percent) believe that procedures for hiring, promoting and resource planning are convoluted and inefficient, while just over a third (34 percent) think that HR “actively obstructs them from making these decisions themselves.”

Embracing Resolutions, Solutions

The study suggests that HR should relinquish some of its control to help alleviate the situation, and a resounding majority of surveyed HR directors (88 percent) believe that empowering line managers to make people management decisions should be a key goal. However, 51 percent of responding line managers admitted they don’t feel empowered to do so.

Technology can help to achieve that goal of redistributing some of the control and accountability, but it isn’t the only answer. If problems persist, experts said, a company should examine its corporate culture, ensure that HR staff gets front-line business experience, and continue to invest in training and development.

“With the advent of new technologies, there’s an opportunity to reduce that frustration on both sides,” said Iain Fitzpatrick, vice president at Hay Group. Using technology can help HR transition from spending too much time on “tactical, day-to-day stuff” to “making that more strategic contribution” while ensuring that policies are “implemented and executed in a consistent way.”

Nevertheless, “Technology is merely a tool; it is not a strategy,” noted Rick Dacri, president of Dacri & Associates, a Kennebunkport, Maine-based HR consulting firm. “HR should be taking a leadership role in formulating and implementing workforce strategies, not focusing on methodologies or the latest fad or apps.”

Dacri, author of Uncomplicating Management: Focus On Your Stars & Your Company Will Soar (Just Write Books, 2009), said difficulties between HR staff and line managers often arise because each side lacks a clear understanding of what the other does.

While HR may be concerned with compliance, consistency and fairness, operations may be more concerned with getting things done, profitability and expediting innovation,  he explained. HR professionals with operational experience are well versed in all aspects of the business. Mary Barra, the recently named CEO of GM, began her career in engineering and later moved into HR. “She gets it,” he said. 

But it works both ways. And sometimes line managers “don’t quite understand” issues that HR grapples with, Dacri observed. “I think there’s a tendency for line staff often to think that they can do HR [work] because that stuff—interviewing and disciplining—is easy, and it isn’t.”

In an e-mail to SHRM Online, Sharlyn Lauby, SPHR, president of Fort Lauderdale, Fla.-based leadership training and HR consulting firm ITM Group Inc., advised organizations that are experiencing a growing tension between HR and line managers to consider whether the corporate culture is at the root of it, since HR’s role is defined by the culture.


“In my experience, human resources wants managers to manage their departments,” Lauby wrote. “HR does not want to run another manager’s department for them. That being said, managers need to be given the training and tools to run their departments effectively and efficiently.”

Some companies hire and/or promote the most technically competent people to management and then fail to give them the training they need to do the job properly, Lauby said. “Unfortunately, new manager[s are] left out on their own and learn by making mistakes. While sometimes that’s OK, other times it means spending a lot of time in human resources.

“Technology can bring many efficiencies to the workplace, [but its] purpose isn’t to have managers stop thinking,” she continued. “Managers [have to] think in new and different ways, know when technology is the best approach and when face-to-face interaction is best, and [to] understand the logic behind the technology so you can apply the same principles when the technology is unavailable.”

So companies that want to create an autonomous workforce need to teach employees what autonomy means, she said.

“I call it self-management, meaning that I’m aware of my personal strengths and weaknesses, understand how to solve my own problems, and know the best ways to resolve conflicts.”

Pamela Babcock is a freelance writer based in the New York City area.

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FMLA: 12 Tips on Family and Medical Leave

(This was reprinted from HR Magazine and authored by Allen Smith. Allen Smith, J.D., is manager, workplace law content, for SHRM)

Family and Medical Leave Act (FMLA) compliance is difficult and annoying, said Mark Oberti, an attorney with Oberti Sullivan LLP in Houston, at the National Employment Law Institute’s Annual Employment Law Conference in Arlington, Va., Nov. 16, 2012.

The U.S. Department of Labor’s FMLA regulations often aren’t much help, as they rarely make it clear when an employer may fire someone, he added.

Oberti outlined 12 compliance strategies for employers:

  1. When in doubt, send the employee the  notice of eligibility and rights.
  2. Provide written notice of approval or disapproval of FMLA leave to the employee.
  3. Have a specific, formal policy to request leave, and adopt and enforce a call-in policy. Be reasonable about enforcing the policy, he cautioned. For example, cut employees some slack if they call in to their supervisors, instead of HR, even if the policy provides that they call HR. Continue reading

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DOL Surprise Visits On Rise: Steps to Prepare

(Guest blog: Allen Smith, J.D., is manager, workplace law content, for SHRM.)

More Department of Labor (DOL) investigators are showing up unannounced at worksites and seeking to conduct immediate wage and hour investigations, says Alfred Robinson Jr., acting administrator of the DOL’s Wage and Hour Division during President George W. Bush’s administration and now an attorney with Ogletree Deakins in Washington, D.C.

Employers shouldn’t be caught flat-footed, Robinson told SHRM Online, adding that employers should have a notification protocol so that the proper people are notified if an unannounced investigation happens. The proper people could include corporate officials, HR professionals, in-house counsel and possibly outside counsel.

“It is important for employers to have a game plan in place for what to do if someone from the Department of Labor shows up at the door,” agreed Paul DeCamp, an attorney with Jackson Lewis in its Washington, D.C., area office and a former administrator of the Wage and Hour Division during Bush’s administration.

“Ordinarily, my recommendation is to have the legal department notified right away,” DeCamp remarked. “With legal overseeing the response, the right person to interface with the agency may be someone from legal, or human resources, or even from operations if that person is sophisticated and skilled at dealing with a potentially adversarial government representative.”

Often when the DOL appears unannounced, an employer is unprepared, Robinson said, noting that the records the government wants to see might not be readily available or at that location.

Other things might be going on, so that the people who need to meet with the investigator are not available, he added, saying that the employer might suggest that the investigator remain in the waiting room and then negotiate a different time to begin the investigation.

Sought Documents

The documents DOL investigators seek in a surprise investigation typically are the same ones they seek after sending a notice of a DOL investigation, namely: 

Names, addresses and telephone numbers of all business owners and company officers such as the president, treasurer, secretary, board of directors and other corporate officers, along with a company organizational chart.

  • The legal name of the company and all other names used by the company (for example, “doing business as” names).
  • Records showing the company’s gross annual dollar volume of sales for the past three years.
  • A list of all employees with their addresses, hourly rate or salary, job titles, shifts and whether the employer considers each employee exempt from overtime.
  • Payroll and time records for the past two years, including a copy of the most recently completed payroll.
  • Birth dates for all employees under age 18 who worked during the previous 24 months.
  • 1099 forms and contract documents with any subcontractors at the establishment.
  • The employer’s federal employer identification number.
  • The names and telephone numbers of all subcontractors and subcontracted workers on the project.

The increased use of surprise visits might be attributable to a lack of confidence in those in the private sector and a desire to reap the benefits of taking an employer by surprise, Robinson said. He noted that sometimes DOL suspects that an employer has child labor violations, in which case an unannounced visit is the best option in order to be there when any youth are working and to interview them or take their pictures.

However, a surprise visit is not the best use of DOL’s resources if an employer is not in a position to be cooperative, he stated.

Stand Your Ground

Employers should stand their ground at appropriate times, Robinson added. 

“All you are required to provide is what’s in the regulations,” he said, referring to 29 C.F.R. 516, including Sections 516.2, 516.5 and 516.6.

“You do not have to disclose every aspect of the business,” Robinson noted. Sometimes investigators take pictures, and an employer has the right to protect its confidential processes, equipment, patents and business secrets, he added.

“Employers should give careful thought to how much information they want to produce relating to their annual revenues as well as information about individual owners, officers or managers,” DeCamp cautioned.

“If the employer is willing to stipulate that the annual revenues exceed $500,000, then the agency has little or no need for detailed information.”

DeCamp added, “I would also think carefully about whether to provide workers’ e-mail addresses or telephone numbers. The Fair Labor Standards Act record-keeping regulations do not require employers to maintain that information, and I normally take the position that the agency is not entitled to records that the law does not require employers to maintain.”

Investigation Process

Once on-site, an investigator will present his or her credentials and conduct an opening or initial conference, according to Robinson. During the meeting, the investigator will meet with representatives of the employer, explain the purpose and plans of the investigation, inform the employer of what documents and records he or she will review, provide information on the time period covered by the investigation, advise the employer of whether he or she plans to interview employees and provide other relevant aspects of the investigation’s fact-finding.

“Management and counsel should carefully review document and interview requests and assess how best to respond, including exploring with the investigator the areas of concern,” said Christine Howard, an attorney with Fisher & Phillips in Tampa, Fla. “Often, an employer might be able to convince the investigator to limit the scope of the inspection.”

Robinson pointed out that once an investigator has completed the fact-finding, review of records and interviews with employees, a closing or final conference is scheduled with the employer to review the findings. At the final conference, the investigator will review the investigation findings and seek agreement to pay back wages, if any are found due and owing, and seek a commitment to future compliance. If an agreement is not reached, the Wage and Hour Division may refer its findings to the Office of the Solicitor for litigation, and employees will be notified of their right to file a private lawsuit.

Common Employer Errors

Howard said a common mistake for employers to make in responding to DOL investigations is “failing to be prepared and have a plan for addressing the inspection or appointing an employee to handle the investigation who has no experience with one. Once notified, an employer should not go blindly into the inspection but should have a plan that serves to get the inspection focused and manageable.”

Employee interviews are part of most investigations, according to Robinson. He noted that a company official or representative is allowed to be present for the interview of an exempt manager but not for the interview of nonexempt employees.

Too often employers “panic, say things they shouldn’t and don’t actually provide what the DOL wants,” cautioned Jennifer  Shaw, an attorney with Shaw Valenza in Sacramento, Calif. She recommended that employers be sure to follow the law up front, partner with legal counsel and “don’t be obstructionist.”

DeCamp agreed that employers “should cooperate to the greatest extent feasible, convey to the investigator in every interaction that the employer is committed to compliance and wants to work with the agency to ensure that it is in full compliance, and respond promptly to the agency’s requests.”

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Yahoo CEO Caught Falsifying Resume

What was he thinking? Falsifying a resume? That’s what Scott Thompson, President of Yahoo did. He stated on his resume that he had a degree in computer science, when he did not. When he got caught, he blamed the recruiter. And for all that, he lost his job. Senseless. At the CEO level, no one really cares what your undergraduate degree is in. But frankly, that’s not the point. The Yahoo Board was correct in asking Thompson to step down. When someone lies, trust is broken and when you have no credibility with the people who work with and for you, it is time to go.

We unfortunately hear a lot about resumes containing fraudulent information and we can expect to hear and see much more. With a tight economy and people desperately trying to find employment, puffing one’s resume for some seems like a reasonable risk.  They’re wrong.

ADP and the Society for Human Resource Management recently released a disturbing study on this. Some of their findings include:

  • 53% of resumes and job applications contain falsifications
  • 78% of resumes are misleading
  • 21% of resumes state fraudulent degrees
  • 70% of college students surveyed would lie on a resume to get a job they wanted

Employers must be extra vigilant in conducting background checks on applicants. While most reference checking confirms dates of employment, verifying education is rarely done. As for job seekers, never, ever, falsify your resume. As Thompson found out, it will get you fired.

Employers, are you finding many fraudulent resumes and if so, what are you doing when you discover them? Let us know by commenting below.

Rick Dacri

Dacri & Associates, LLC

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