Sorry, J-Lo and CeeLo: Real world requires carefully crafted employment dress codes

February 14, 2017 - by: Angela Cummings 0 COMMENTS
Angela Cummings

The Grammys aired on Sunday, February 12, 2017. Every year, audiences tune in to the glamorous awards show to watch the presentation of such celebrated accolades as “Song of the Year” and to take in the live performances of their favorite musicians. I, however, plant myself in front of the television for one reason onlyto scrutinize the often outrageous outfits worn by the music industry moguls and Hollywood insiders. Can you believe that it has been almost 20 years since Jennifer Lopez walked the red carpet in the green dress that was slashed all the way down to her pelvis? Such eye-popping outfits and costumes continue to dominate the show.  Casual and formal look

In my opinion, this year’s award for most intriguing Grammy look went to CeeLo Green, who dressed in gold from head to toe and donned some sort of gilded hairpiece that commentators appropriately compared to a piece of Ferrero Rocher candy. A-list celebrities have the freedom to express themselves with bold clothing wherever they go, of course, including to “work events” such as the Grammy Awards. However, for everyday employees, that is not the case.

The HR department (often in conjunction with an in-house legal department or outside legal counsel) should adopt dress code policies to ensure that employees are exercising good judgment with respect to personal grooming and attire in the workplace (and while attending any work-related, after-hours functions). Such policies are necessarily broad-ranging, from a required, singular uniform that all employees must don in a specific manufacturing setting to a relaxed policy where employees are free to wear their own clothes each day so long as those clothing choices are appropriate for the company’s business (and industry).

While enjoying wide latitude when it comes to adopting dress code policies and practices for their workers, employers must take caution with respect to a couple of areas or chance running afoul of Title VII of the Civil Rights Act of 1964. Therefore, to avoid an Equal Employment Opportunity Commission (EEOC) charge related to dress code (and to avoid litigation by the EEOC or an individual), HR representatives should consider the following when drafting or reviewing their organization’s dress code policy:

  • A dress code policy may not treat some employees less favorably because of their national origin. The example often cited by the EEOC is that a dress code may not prohibit certain types of ethnic clothing, such as traditional African or East Indian attire, while allowing employees to select and wear other types of casual clothing.
  • An employer must consider and evaluate possible religious accommodations with respect to its dress code policy. An employee may request a religious accommodation under Title VII when a dress code conflicts with the employee’s religious practices. In such cases, the employer should consider modifying the dress code to remedy the conflict or permit an exception (unless it would cause an undue hardship). A group of high-visibility lawsuits brought by the EEOC against Abercrombie have focused on dress code policy in the context of a Muslim hijab (headscarf), which the company claimed violated its “Look Policy.” Not surprisingly, the EEOC disagreed with the retailer.

In sum, while it is a best practice for most companies to maintain a dress code policy to ensure that employees are dressed safely and appropriately at all times, such policies have to be drafted and enforced with an eye on anti-discrimination and accommodation laws. And, finally, here’s to hoping that your organization does not encounter such interesting attire on the job as that donned at the Grammy’s by JLo in 2000 and CeeLo in 2017!

Twins for Clooneys! How to manage pregnant employees who aren’t gazillionaire celebs

February 13, 2017 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

A-list celebrity George Clooney, long considered Hollywood’s most eligible bachelor, surprised the world when he married international human rights lawyer Amal Alamuddin back in 2014 after decades of assuring journalists, adoring fans, and a slew of ex-girlfriends that he would never, ever tie the knot a second time. Apparently, George also had a change of heart about becoming a father (which he also swore he would never, ever do) because he and his wife announced last week that they are expecting twins.   Tired Parents Cuddling Twin Baby Daughters In Nursery

Among the rarified ranks of the world’s rich and famous, news of impending parenthood may prompt a full-time nanny search or, in the case of actresses who are expecting, some creative camera angles to conceal a growing baby bump. In the real world, however, the happy news that an employee is pregnant (or about to become a parent) can breed numerous HR challenges. To help you labor through this issue, here are a few tips for managing an employee’s burgeoning brood.

#1 – Do not discriminate 

Pregnant applicants or employees must be treated fairly and cannot be subjected to special scrutiny because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Under the Pregnancy Discrimination Act (PDA), the protection against pregnancy discrimination covers all aspects of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, and fringe benefits. As a result, an employer may not single out pregnant employees for special requirements when determining whether a pregnancy will impede the employee’s ability to do her job.

If an employee is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, you should treat her in the same way as you would treat any other temporarily disabled employee. For example, you may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if you do so for other temporarily disabled employees.

#2 – Accommodate pregnancy-related disabilities

Although most pregnancies do not implicate the Americans with Disabilities Act (ADA), some impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia) may qualify as disabilities under the ADA. An employer must provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, unless the employer can show that providing the accommodation would pose an undue hardship (i.e., significant difficulty or expense). Keep in mind that the 2008 amendments to the ADA greatly expanded the definition of disability, making it much easier for an employee to show that a medical condition is a covered disability. Therefore, you should carefully evaluate requests to accommodate a pregnant employee and engage in the interactive process under the ADA to determine what, if any, accommodations will enable the employee to perform her essential job duties.

#3 – Provide parental leave to eligible employees

Under the Family and Medical Leave Act (FMLA), a new parent (including foster and adoptive parents) may be eligible for 12 weeks of unpaid leave that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave; worked at least 1,250 hours during the year prior to the start of the FMLA leave; and work at a location where at least 50 employees are employed at the location or within a 75-mile radius. Importantly, the FMLA provides leave for new fathers, as well as new mothers. Further, with few exceptions, upon return from FMLA leave, an employee must be restored to his or her original job, or to an equivalent job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions. In addition, an employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before taking FMLA leave.

Whether you are a Clooney or a mere mortal who lives outside the glitterati bubble, expecting a bundle of joy is great news. As HR professionals, before you attend that baby shower or hedge your bets in the office baby pool, make sure to follow these tips to ensure you treat your employees fairly and don’t run afoul of the PDA, ADA, and FMLA.


Developing a PIP that will make employees comeback heroes—Tom Brady style

February 07, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

I’m sure you all watched or heard about the Super Bowl on Sunday night: Despite the fact that his team was trailing by 25 points, Patriots quarterback Tom Brady led New England on the greatest comeback in Super Bowl history. Brady’s season began with a four-game suspension for his involvement in the “deflategate” scandal and ended as Super Bowl MVP. It’s a comeback within a comeback. Despite not knowing much about sports, as a New Englander, I would be remiss if I let this opportunity pass without drawing some sort of analogy to HR. Because my law firm is based in Atlanta, I admit, I’m cowering just a little.  Patriots' parade in Boston for winning Super Bowl XLIX

As HR professionals, we are often called upon to assist managers in addressing concerns with employees who appear to be falling behind company expectations. How can we encourage employee “comebacks” and assist supervisors by providing effective tools to help employees to do so?

When verbal counseling and written disciplinary action have not been successful at correcting performance-related deficiencies, a performance improvement plan (PIP) is often used as a means to correct performance and avoid termination. Developed and used properly, a PIP can be an effective tool. Here are recommendations for developing an effective PIP:

  1. Outline, with specificity, performance-related concerns, i.e., the reasons for the PIP. This section should be very detailed (in terms of facts and dates), include applicable requirements from the job description, and summarize/reference previous performance-related discussions/discipline.
  2. Establish specific quantifiable and realistic goals for the PIP so that the employee can clearly understand what is expected. The PIP should include consequences for failing to meet the goals.
  3. Provide a list of available tools. For example, the employee can be provided with training that targets any deficiencies, whether inside the organization or through a third party. Alternatively (or additionally), a mentor can be assigned to answer questions on an ongoing basis. The employee should be given an opportunity to discuss what tools he/she believes are necessary to meet the goals outlined in the PIP. The tools may change as the employee progresses through the PIP.  The employee should be given an opportunity during feedback meetings to discuss whether any additional tools are needed.
  4. The PIP should include a schedule for the feedback meetings, which should be frequent and meaningful. The employee should be aware of how he/she is progressing through the plan at all times. The meeting frequency may need to be adjusted depending upon how the employee is progressing. The discussions should be calm and free-flowing.
  5. The PIP should include a duration. The time period may need to be adjusted depending upon the particular circumstances. For example, if some progress is made and there is promise but the employee hasn’t yet reached a satisfactory level of performance, the time period may need to be extended.
  6. The PIP should be signed by the employee.

Hopefully, the PIP will result in the improvement in overall performance, even without the assistance of Lady Gaga falling from the sky.


Sherlock: the final problem for employers

January 27, 2017 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

The series four finale of Sherlock cleverly illustrates the dangers of allowing the inmates to run the asylum. The show regularly covers behaviors that would alarm any employer, such as Sherlock abusing drugs, firing guns indoors whenever frustrated, and generally being delightfully bizarre. These oddities are some of the many reasons that Sherlock is a consultant for, rather than an employee of, the local authorities.  Personality Assessment Form

They also explain why Sherlock has no regular employees to speak of, unless you count his secret network of informants. This series introduces Sherlock’s sister, who is comprised of equal parts evil and intellect. When she takes over the high-security facility where she has been housed for decades for being “too clever,” all bets are off.

The fact that the facility’s employees ignore established policies and protocols for handling this particular inmate has devastating consequences. The facility certainly could have used some advice on employee screening, training, and discipline for failure to follow procedures.  It also may have wanted to invest in some serious psychological testing of any employees, though screening applicants by use of psychological tests may raise Americans with Disabilities Act (Act) concerns if the tests are used to detect mental impairments.

Such screenings also may implicate rights under state law or raise discrimination issues, depending on the types of questions asked in the test. If lawful, a psychological test should be given only after an employment offer has been extended, because a pre-offer psychological examination may constitute a prohibited pre-offer medical exam under the ADA. Regardless, I doubt any psychological screening could have prepared the facility to handle Sherlock’s little sister.

Some general takeaways for employers are:

  1. Using sword-wielding clowns and bleeding portraits to frighten an individual into telling the truth is very effective, but still not acceptable behavior.
  2. Double-check that any glass walls in your facility actually have glass in them.
  3. Do not leave employees alone with highly dangerous geniuses with a particular talent for mind control.
  4. Beware of inmates–or employees–converting areas of the facility for their own personal uses.
  5. Finally, even the most seemingly complex problems can sometimes be solved with a little love.

The power of habit and HR policies

January 23, 2017 - by: Katie O'Shea 1 COMMENTS
Katie O'Shea

At the start of a new year, many individuals set goals and resolutions, hoping to change bad habits or form new ones. Exercising, eating healthy, reading more books, learning something new, and spending more time with family or friends are all common resolutions. 

But many of these well-intentioned goals and resolutions fall off days, weeks, or even months after people resolve to stick with them. After about three weeks into the New Year, how are your goals and resolutions coming along?

If you’ve found you haven’t been hitting the gym quite as hard as you’d planned, or that you’ve been unable to resist those sugary treats you vowed to give up, you may personally benefit from picking up the book The Power of Habit by Charles Duhigg. The book delves deep into the science behind our habits and how to transform them.

In addition to focusing on how individuals can change habits, however, the book also explores how institutional habits can change in huge companies. Perhaps your organization has also started out the year by setting goals for tasks to accomplish this year. However, just as changing habits can be difficult on an individual level, changing habits and company culture on an institutional level can be even more challenging.

The book discusses how focusing on certain so-called “keystone habits” can help transform other areas of an organization. For example, in one case study, the book delves into how a new CEO of a huge international company transformed the entire organization, its habits, and ultimately its bottom line, all by focusing on safety. Safety was a keystone habit that management, employees, and the union could get behind. By focusing on changing safety habits to make the workplace safer, employees and management rallied around a common goal. In doing so, the company changed its safety policies and encouraged a culture of open communication. By demonstrating that the company was serious about hearing feedback from employees on how to improve safety, employees began to feel comfortable sharing other ideas as well, such as ways to increase efficiency. Soon, the company had both dramatically reduced injuries and increased efficiency, and in turn profits soared.

Now is a good time to seriously evaluate and audit company HR policies to determine not only if they comply with the law, but also if they contribute to good habits and company culture. If not, it may be time to attempt to find ways to transform those habits. I recommend adding The Power of Habit to your “to read” list both to benefit you personally, and to benefit your organization.

HR tips for drafting and cultivating your own ‘Tom Brady’ or ‘Aaron Rodgers’

January 16, 2017 - by: David Kim 0 COMMENTS
David Kim

Think the NFL was happy with this past Sunday’s games? I sure do. The NFL playoffs are in full swing and that usually is great news for the league since they get to dominate the sports headlines for a while. But after a weekend and a half of lackluster matchups and boring blowouts, the NFL must be counting its lucky stars that it finally got two competitive games in the divisional round playoffs this past Sunday, with the back-and-forth matchup between the Packers and Cowboys serving as an instant classic.  Chief help an employee to hit the ball

After the dust has settled, four teams now remain. And there’s a similar thread running through each of these four remaining teams: outstanding quarterbacks. Matt Ryan may not have had previous playoff success, but he’s had a phenomenal year that will likely garner him the MVP award. Aaron Rodgers has been the hottest quarterback down the stretch and is annually one of the leaders at his position. Big Ben Roethlisberger is also a yearly constant and always a threat to make an impact in any game. Tom Brady is, well, Tom Brady.

These are arguably the best four quarterbacks of all the playoff teams this year so it’s no surprise their teams are still alive. I know, Russell Wilson is a good quarterback, but he’s been incredibly inconsistent (and in some cases just bad, which has a lot to do with his O-line) on the road this year. Dak Prescott had a great game against the Packers, but Rodgers simply made an incredible play to put the Packers in position for that game-winning field goal. Alex Smith is known to play mistake-free football, but he just doesn’t have the ability to carry his offense to victory. Brock Osweiler is, well, I guess there’s no need to pile on top of what’s already been said. Let’s just say good luck to the Houston Texans with that contract and leave it at that.

Not only are all four of these remaining QBs outstanding players and leaders, but they were drafted and groomed by each of their current teams. It’s no surprise that having a great quarterback is essential to a football team’s success (yes, I know the Broncos won the Super Bowl with an over-the-hill Peyton Manning at QB last year, but I’m choosing to ignore that for purposes of this blog).

Sports analogies are constantly used in various situations, and the employment arena is no exception. Just as quarterbacks are vital to a football team’s success, your top-level managers (i.e., your quarterbacks) are incredibly important to one’s business. This includes not just in day-to-day management of the company, but also to ensure that appropriate action is taken to avoid any potential liability that could be incurred by the company.

A good manager knows the playbook inside and out, which includes knowing the pertinent procedures and policies that are in place so that your business is protected from claims of unlawful employment action and in full compliance. A good manager knows the strengths and weaknesses of his teammates and other personnel, and how to deal with them not only on a collective basis but on a one-on-one basis if the need arises. A good manager is excellent at time management and knows when the pocket is caving in on him or her that immediate action is needed, and that not addressing the situation in a timely fashion could result in more problems in the long run. A good manager sets the tone so that the workplace is a positive environment, resulting in less discord among employees or between employees and management, thereby limiting the possibility of lawsuits from disgruntled and unhappy workers. And finally, and most important, a good manager is a great decision maker, who has to trust his or her preparation and judgment to make split second and decisive decisions when the situation calls for it.

But good managers sometimes aren’t always created out of thin air, able to contribute their very first year in the league. Sometimes you have to identify those with talent and promise, those who have the proper motivation and mindset to lead others. Then you have to cultivate that promise, by providing them the means necessary to grow, learn, and possess all the tools needed to allow them to be great managers. Therefore, it is incumbent on employers and those at the top level and/or in HR to identify, train, retain, and cultivate those within the workplace who have the ability and drive to be great managers. It’s not all about the first-round pedigree as a good resume alone is no substitute for determination and the intangibles needed to be a great manager of people. Who knows? With enough attention to detail, commitment, and maybe even a little luck, you might find the next Tom Brady.

Hack attacks!

January 11, 2017 - by: Matt Gilley 0 COMMENTS
Matt Gilley

Lately, the news has led with stories about the alleged Russian hacking of various American political organizations, ostensibly for the purpose of influencing the 2016 elections. U.S. law enforcement has surmised that the Russian government orchestrated a number of incursions into networks controlled by the major political parties and that they used or disclosed certain information. You’ll recall the leaks of major Democrat Party and Hillary Clinton campaign e-mails. Now, news reports claim that the investigation revealed the Russian government may have collected compromising information about President-elect Donald Trump.Data-Breach

As with any hacking story, we can’t be sure exactly what’s out there or what’s real. However, we can’t deny that hacking goes on beyond government and politics. Private organizations and businesses are just as enticing to data thieves, and are often softer targets. We have seen prominent data thefts from all industries:  Telecommunications, manufacturing, tech, and consulting are all targets.

Human Resources in any organization plays a critical role in firming up an organization’s data security and cyber defenses. Data security has to take account of both internal threats (from employees and other insiders) and external threats (from data thieves and other hackers who want your information for personal gain or for other reasons). In this regard, Human Resources should assess the following:

  • Do we have safeguards in place to protect against internal data thefts? At a minimum, your employees with access to competitive or proprietary data should have confidentiality agreements, and the organization should have a policy in place to allow for monitoring use of company systems and advise employees that their use will be monitored. Also, walk around your office and see how many people have their passwords stuck to their computer on a Post-It note–any example you find is a weakness just begging to be exploited.
  • Do your people know how to spot threats? Attacks can come from any number of directions. For example, employees need to report suspicious activity, like a fellow employee who shows an inordinate amount of interest in data not related to his or her job. Also, employees often download data onto external storage media like hard drives or USB drives. Is your company preventing or monitoring these kinds of activities?
  • Are your employees easy marks? Hackers today gain access through any number of inventive ways. You need to ensure that your employees are trained to spot and report suspicious behavior like phishing, social engineering, and attempts to introduce malware into your organization’s systems. If any of these terms is unfamiliar to you, you need to get moving!

Training your people is the first way to prevent these attacks, because data thieves see your people as the easiest way into your system.

Do not repeat the mistakes of your diva

January 03, 2017 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

Preparation pays off. While it may be well known that “practice, practice, practice” gets you to Carnegie Hall, it appears you don’t even need to do the sound check to play Times Square on New Year’s Eve. Mariah Carey’s performance to close out the year may have felt like a fitting end to 2016, a year that has caught so much flack for surprise results and the loss of so many notable actors and musicians. Twitter was ruthless, as usual. Here it is, if you haven’t seen it (and you’ll probably watch it again even if you already have, just because). Like a train wreck in slow motion, you cannot look away.  BE PREPARED, message on business note paper

As the album version of her hit “Emotion” blared through the speakers, Carey attributed her Milli Vanilli impression to not having run a sound check. And herein lies today’s lesson for employers: Preparation Pays Off. Whether you’re a start-up company or a well-established brand, preparation in all thingsespecially HRis key. While Mariah Carey may be able to just say “S**t Happens” and move on, you and your company may not get off so easily.

In honor of the queen of the high note, here are a few tips for making sure you are prepared for 2017:

  1. Update your employee handbook. You know that thing collecting dust in the corner of your HR office or the electronic file you haven’t even tried to access since migrating to a new platform? Yeah, that one. Chances are if you put your handbook together in 2015 or before, at least some of the policies you drafted may have need to be revised. Even though the DOL’s overtime rule change didn’t go into effect, you may be headquartered or operating in a state whose employment laws changed slightly or significantly either through legislation or court decision, making your old policy out of date. The same applies if you made the effort to update one or just a couple of your handbook policies in the past years without revising the whole thing. While spot revisions are fine to ensure ongoing compliance, it is good practice to periodically review the entire handbook to ensure revisions haven’t created contradictions, either in wording or in practice. If any changes are made, be sure to re-circulate the new handbook to your employees.
  2. Train your managers. This applies regardless of whether your policies change. If you have read any of my previous posts on this blog, you might notice this commandment is a theme. This is because managers and front-line supervisors are so crucial to your company’s operations, especially when it comes to the application of employment laws. As far as the law is concerned, the company speaks through its managers, therefore, if your policies say one thing, and your managers say (or do) another, you are likely going to run into a problem sooner rather than later. And your problems will likely be a bit tougher to explain than a bad ear piece. Regularly training managers on the law and your company policies is the best way to ensure your managers don’t get your employees feeling “emotions” about the Company. (Okay, I’ll stop.)
  3. Audit your practices/positions. Do your operations remain stagnant year-over-year? Are you still doing the same thing you did 10 years ago? Are you doing it the same way? If the answer to one or more of these questions is “No,” and, even if not, it likely should be, then you should probably take a look at your position descriptions to be sure they match up with what your company is actually doing. Position descriptions are important both in the wage and hour context and in disability situations. Courts consistently look at a company’s position description to determine the “essential functions” of a job when analyzing whether an individual employee may be reasonably accommodated. So, keeping your descriptions up-to-date is the best way to ensure your managers and/or HR department is properly equipped to engage in the interactive process. In addition, making sure your position descriptions line up with employees’ actual duties is important when determining compliance with state and federal wage and hour laws regarding overtime exemptions, etc.

Use Mariah Carey’s final blunder of 2016 for good: resolve to prepare your company for a successful 2017!



Top 5 HR resolutions for not getting sued in 2017

December 19, 2016 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

As 2016 draws to a close, each of us will likely take time to reflect on what we hope to achieve in the coming year. In my case, this reflection usually involves resolving to be happier and more productive and reduce my carb intake. I would be remiss as an HR lawyer, however, if I did not bid 2016 adieu by leaving you with a few nuggets of wisdom to help you navigate your way through the new year. So, ladies and gentlemen, I give you my Top 5 HR resolutions for not getting sued in 2017.  2017 To do list year on white poster with pencil

Resolution #5: Train your employees and managers

It’s great to have an up-to-date employee handbook that puts your workforce on notice of your company’s policies and procedures, but training your management and non-management personnel is also essential. Managers must be trained on effective leadership and communication techniques, interviewing, reference-checking, and discipline, as well as equal employment opportunity, anti-harassment, and anti-retaliation policies. In addition, managers must be trained on how to address employee absences and inquiries under the Family and Medical Leave Act, Americans with Disabilities Act, and workers’ compensation laws. Last but not least, managers should be trained on the importance of contacting and involving HR when making decisions that could legally bind the organization.

Like managers, employees must also be trained on the company’s policies and procedures, including how to make complaints of discrimination, harassment, and retaliation. Simply having your employees acknowledge receipt of the policies in the handbook is not enough.

Resolution #4: Complete accurate performance evaluations

Sometimes, an inaccurate performance evaluation is worse than not evaluating an employee’s performance at all. Employees want and need feedback on their job performance, and the evaluation process should be timely and accurate. Evaluations should be used to identify deficiencies in employee performance or conduct, and to set goals and expectations for the future. Unfortunately, in an effort to be nice or avoid conflict, many managers will inflate an employee’s performance rating, but not all employees are superstars who consistently exceed expectations.  Although it may make a manager’s life easier in the short term to just give a lackluster or struggling employee a pass on his or her evaluation, it will be extremely difficult later on to defend a decision to discipline or terminate that employee for performance-based reasons when the evaluations reflect a stellar performance record.

Resolution #3: Address work conflicts promptly

Nearly all employment law claims stem from interpersonal conflict between employees, especially conflicts (perceived or actual) between an employee and a new manager. Whatever you do, don’t turn a blind eye toward such conflicts. Failure to act often leads to discontent, lack of trust, and a lack of loyalty. To keep problems from spiraling out of control, you should identify and address employee conflicts in a timely manner and follow-up with the individuals involved to ensure that the situation has been satisfactorily resolved.

Resolution #2: Apply policies and procedures consistently

Consistent application of your organization’s employment policies and procedures provides your first and best line of defense to employment law claims. Inconsistency breeds complaints of favoritism and may also provide circumstantial evidence of discrimination or retaliation. Before you write someone up for returning late from lunch, make sure you are treating the employee the same as you would other employees under your supervision who committed the same or similar infraction.

Resolution #1: Document, document, document

Come on, you knew the number one spot was going to be reserved for documentation, didn’t you? Documentation is to HR as location is to real estate investment. It’s everything. If something happens at work (e.g., discipline, conduct issues, interpersonal conflict, leave requests) that you think could somehow become important in explaining the actions of management or to challenge the accuracy of an employee’s complaint (or yet to-be-filed EEOC charge or employment lawsuit), there needs to be documentation about it somewhere to back up your story. I don’t care if you prepare a full-length investigative summary, write a memo to the file, send an e-mail to yourself, or jot it down on a cocktail napkin and throw it in your desk drawer–JUST DOCUMENT IT.

Well, there you have it, folks. Five HR resolutions to help keep you out of the doghouse (and the courthouse) in 2017. Unlike my resolution to cut carbs, I hope you will actually keep these resolutions next year.

Happy New Year to all!




Baseball purists

December 13, 2016 - by: Matt Gilley 0 COMMENTS
Matt Gilley

“Puritanism: The haunting fear that someone, somewhere, may be happy.”

-H.L. Mencken

This post may not be the usual finger-wagging scold you may have come to expect from an employment lawyer. I’m confident, though, that this blog’s audience of fellow practitioners and human resource professionals will take a little solace in it. After all, it’s no fun to be a killjoy and we are thrust into that role more often than we’d like.  Young male baseball referee blowing a whistle

Why? Because potential liability under the employment laws too often compels us to manage to the lowest common denominator.

That frustrating fact claims its share of fun as casualties because you never know when some yahoo is going to take the fun well beyond harmless. Witness the latest casualty, as reported by the Washington Post: Major League Baseball’s new collective bargaining agreement will prohibit (well, curtail) the time-honored practice of rookie hazing.

As reported by the Post (quoting the Associated Press), the new CBA “bans players from ‘requiring, coercing or encouraging’ other players to engage in ‘dressing up as women or wearing costumes that may be offensive to individuals based on their race, sex, nationality, age, sexual orientation, gender identify or other characteristic.’” Gone are the days, the Post mentions, when the Washington Nationals dressed their rookies as gymnasts and ballerinas, or when the Dodgers outfitted Yasiel Puig as Gumby. In other words, grizzled MLB veterans can’t poke some good-natured fun at rookies by putting them in a Marilyn Monroe wig because there’s probably some perverted vet out there who’s going to torment a rookie until he streaks the field wearing who-knows-what.

Now, I don’t blame you a bit if you read that last paragraph and decided that Major League Baseball and the players’ union have done us all a very big favor. On the other hand, friendly ribbing and joking can go a long way to develop chemistry and camaraderie among a teamwhether it’s a baseball team or a business unit. The trick, of course, is knowing when it’s crossed the line, and that’s a terribly difficult line to draw (“good-natured” and “fun” being in the eye of the beholder and all). Unfortunately for us, the easiest way to navigate safely among Title VII of the Civil Rights Act of 1964, the National Labor Relations Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and all of the other employment statutes is to put the kibosh on as much of it as you can.

I wish I had some more cheering news. No one enjoys telling a good employee that they can’t pull a harmless prank because a real-world Bluto Blutarsky may stalk among us, primed and ready to take that inch and go 100 miles more. Until we all grow up, though, we may just have to accept the unwanted mantle of the Puritan crusading against fun. And there’s one thing we know about adult humans: we don’t always act like adults.

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