All posts by Jonathan A. Segal

Jonathan A. Segal

About Jonathan A. Segal

Jonathan’s preventive and corrective approach to employment/HR issues includes counseling, policies, training, agreements and audits. Areas of substantive focus include, for example: gender equality, wage and hour compliance, social media and employee engagement. When Jonathan isn’t counseling employers or dedicating his time to SHRM and the HR community, he can be found volunteering his time and efforts to animal rescue. Jonathan is also mad about Mad Men, writing and speaking on the employment issues arising out of the MadMen Era! Follow Jonathan on Twitter @Jonathan_HR_Law.

“Cooperative Dialogues” in New York City In Effect Now!

I am pleased to present my latest post to The SHRM Blog.

Important reminder that, effective today, October 15, 2018, under the New York City Human Rights Law (NYCHRL), employers must engage in a “cooperative dialogue” with applicants or employees in New York City with regard to reasonable accommodations in four (4) circumstances. More specifically, an employer must engage in the “cooperative dialogue” with:

  1. Victims of domestic violence, sex offenses or stalking;
  2. Individuals with pregnancy and related conditions;
  3. Individuals with religious needs; and
  4. Individuals with disabilities.

It is important to remember that, under the NYCHRL, the following are defined very broadly:

  1. The definitions of the 4 circumstances set forth above under which there may be a duty to make reasonable accommodations.
  2. The triggering event for when the duty to engage in the cooperative dialogue may arise in determining whether a reasonable accommodation may exist.
  3. The scope of the cooperative dialogue (in contrast to the interactive dialogue under the ADA).

With regard to the last point, under the NYCHRL, employers must provide to the individual requesting an accommodation a written final determination identifying any accommodation granted or denied. This critical requirement does not exist under federal or any other state or local law (to the best of my knowledge). Note: even where there is no such legal requirement, documenting the analysis is generally recommended.

The City of New York has provided guidance on the cooperative dialogue with regard to disabilities: https://www1.nyc.gov/assets/cchr/downloads/pdf/NYCCHR_LegalGuide-DisabilityFinal.pdf.

Guidance on the cooperative dialogue begins on page 51. The Guidance will be of some value for cooperative dialogues other than with regard to disabilities in terms of the process that New York City generally is looking for employers to follow.

Starting on page 112 are sample forms for the cooperative dialogue with regard to disabilities. These forms are a good starting point for employers, but should be reviewed by counsel for potential changes appropriate in light of other laws and/or the employer’s policies.

As always, this blog should not be construed as legal advice or as pertaining to specific factual situations.  

The Deceptive Complexity of Criminal Background Checks

I am pleased to provide my latest post to The SHRM Blog.

In order to conduct a compliant criminal background check, employers ordinarily must comply not only with the federal Fair Credit Reporting (FCRA) Act, but also state and local laws.  This includes not only ban the box laws, but also laws that impose additional restrictions and requirements beyond when a criminal background check can occur.

Not to be forgotten is EEOC Guidance on criminal background checks. Do not dismiss it as mere guidance. Much of it incorporates what the courts already have said.

Here are some issues employers must consider. I have used the FCRA as a framework for the discussion.

One:  the first step under the FCRA is an authorization.  Among other things:

A.  This must be a separate document and cannot be part of the application for employment.

B.  It cannot include a waiver of claims.

C.  In California, there is a different authorization under state law.

Two:  the second step under the FCRA is the pre-adverse action notice.  Among other things:

A.  Per se rules that result in preliminary disqualification are per se dangerous.  In addition to the EEOC, many states and local jurisdictions require that certain factors go into the analysis.  Such states include New York and Pennsylvania and New York City and Philadelphia go even further than their respective state laws.

B.  Certain factors cannot be considered in deciding whether a conviction is disqualifying.  New rules have gone into effect in 2018 in, among other locations, California and Massachusetts.

C.  The FCRA Notice of Consumer Rights that must accompany the pre-adverse action notice recently has been changed to address freezing credit.  And, some states, such as New Jersey, have their own notice which must be given, too.

Three:  under the FCRA, the final step is the adverse action notice.  In some jurisdictions, the adverse action notice must do more than inform the individual of the final decision, for example:

A.  In California, for example, individuals must be told they have the opportunity to appeal to the California Department of Employment and Fair Housing.

B.  In Philadelphia, there is effectively a repeat of the pre-adverse action step—individuals must be given the opportunity to challenge with the employer (not an appeal to City) the employer’s disqualification finding.

This short summary includes only but a few of the minefields in criminal background checks.  Employers must consider a patchwork of federal, state and local laws that is deceptively complex, a particular challenge for multi-state employers. Don’t go it alone.

This blog is not legal advice

2018 DOL Opinion Letter Under the FMLA

I am pleased to share my latest post to The SHRM Blog.

Many employers have no-fault attendance control policies.  Stated generally:

  1. An employee’s employment terminates if he or she has a certain number of occurrences in a specified period of time.
  2. An occurrence “falls off,” and therefore is not considered, after a specified period of time, for example 12 months after the occurrence.

The law is clear that employers cannot consider time off under the FMLA as an occurrence under its no-fault attendance control policy.  But does the time that the employee is on FMLA leave count toward the period of time after which a point “falls off?”

The Department of Labor issued in August its first opinion letters under the FMLA in more than 9 years, and one (1) of the two (2) addresses this precise issue.  The opinion letter can be found at: https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_1A_FMLA.pdf

The Department of Labor concluded that the period of time in which an employee is on FMLA does not need to be considered as part of the time necessary for an occurrence to fall off, provided that the employer applies this rule on a non-discriminatory policy basis.  For example, if the time an employee is on paid parental leave beyond the FMLA counts toward the period of time after which a point falls off, then not counting the time off covered by the FMLA would be discriminatory.

It is important that employers focus on this issue.  It is also important to note that a court might not agree with the DOL opinion letter.  As important, agencies or courts interpreting the ADA could come out with a different result under the ADA.

Further, the answer may be different with state and local leave laws.  We know that many state and local leave laws provide employees with greater protection than federal law.

So, while I am sure I am not alone in being grateful that the DOL has started to issue opinion letters again not only under the FLSA but also under the FMLA, employers need to be careful not to reach certain conclusions too quickly based on them.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

A Very De Minimis De Minimis FLSA Exemption

I am pleased to share my latest post to the SHRM Blog.

As a general rule, employers must pay non-exempt employees for all time that they work (broadly defined) and that includes getting ready for work (preliminary activities) and finishing work (postliminary activities).  As discussed below, there is a de minimis exemption under federal law (FLSA).

In a recent case involving Starbucks, the California Supreme Court held the de minimis exemption was not available under California state law under the facts of the case.  If and when the de minimis exemption may be available under California state law will be decided in future litigation.

Some of the legal summaries of the Starbucks case suggest that the federal de minimis exemption is broader than it is. It is very narrow.

The following statement comes from the website of the United States Department of Labor:

Insignificant Periods of Time

In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded.  The courts have held that such periods of time are de minimis (insignificant).  This rule applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities.  As noted below, an employer may not arbitrarily fail to count any part, however small, of working time that can be practically ascertained….

https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenee29.asp

Notice some key concepts from the DOL’s enforcement position: (a) short (few seconds or minutes); (b) uncertain (cannot be regular occurrence;) (c) indefinite (which generally means not predictable amount of time each occurrence) and (d) cannot be precisely recorded (vague enough?)

Employers should draft their policies, train their managers, and review their practices to minimize the possibility that there will be any work for which an employee is not paid.  Think of the de minimis exemption only as last resort for litigation.

Employers need to consider work not only at beginning and end of the day but also any work that may be done during an unpaid meal period.  Another issue that needs to be considered is any work that may be done remotely, such as by telephone or e-mail.

The possible case scenarios go beyond this blog but employers need to think them through in drafting compliant policies, training managers and reviewing actual practices. Failure to do so may result in off the clock cases with off the clock judgments.

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

Suicide and the Workplace

Because mental health matters, here is my SHRM Blog on suicide and the workplace.

This past month, two celebrities took their lives, Kate Spade and Anthony Bourdain.  To be more specific, they committed suicide.

It is important to say the word “suicide” because many media reports, at least initially, did not.  There is still, for some, discomfort with mental health issues in general and suicide in particular.

As with #metoo, high-profile cases draw our attention to an issue that is not limited to the high-profile.   Alarmingly, the suicide rate has increased by 25 percent since 1999.

But what does this have to do with employers?  Do employers have any legal duty to prevent suicide?

For the most part, the answer is generally “no.”  But that does not mean employers should not focus on the issue.

The law sets a minimum.  Responsible employers who genuinely care about their employees go further.

What can you do as an employer? What should HR do?

  1. Educate yourself and your leaders on suicide.  Severe depression, often coupled with substance abuse, is one of the primary causes of suicide.  Do not expect employees to just “deal with it.”  Substitute “cancer” for “depression” and you will see how cold and/or ignorant someone may sound if they suggest mental illness is weakness.
  2. Offer your employees access to professional help by way of an employee assistance program (an “EAP”).  As we all know, an EAP is a very inexpensive way to offer employees anonymous support for myriad issues from substance abuse to marital problems to suicidal ideation. If you don’t have an EAP, make the business case to get one.
  3. Share with your employees information about the national suicide prevention hotline.  I will do that just now: 1-800-273-Talk (8255). Why would you not?
  4. Emphasize when you discuss your health benefits both physical and mental health.  It does not hurt to message explicitly that there is no stigma in getting mental health support—no more than getting dialysis.
  5. Consult with a professional if an employee is talking about suicide, directly or indirectly, or if you have objective reason to be concerned about an employee (e.g., talking about helplessness). Obtain guidance on how to speak with the employee.  Yes, there may be some risk under the ADA in removing the employee from the workplace and requiring an assessment (‘perceived disability’ claim).  But that risk must be balanced against the human risk (among others) if your fear contributes to the employee’s decision to end it all.  Further, with careful planning, while the ADA risk cannot be eliminated, it can be minimized materially.
  6. Respond to disparaging, demeaning or hurtful comments about mental disabilities.  Such comments may increase the unwarranted shame and the risk of suicide.  Indeed, address as part of your efforts to educate your workforce on unacceptable behavior of a harassing nature.
  7. Revisit your wellness program.  Is there enough focus on mental health?  Do not assume the answer is yes. We need to add light to the issue so that people do not hide for fear of societal judgment and the life-threatening risks that go with it.
  8. Focus on respect in your leadership training. Being abusive may not be illegal but it is bad behavior that may take its victim to an even darker place.  Bullies are weak but they inflict penetrating pain.
  9. Get help yourself if you have had thoughts about suicide.  It is not weakness.  I cannot think of any greater act of strength.

 

Option B: Lessons from Sheryl Sandberg on Supporting Grieving Employees #SHRM18

I am pleased to share my latest post to The SHRM Blog regarding Sherl Sandbergs advice on how to support grieving employees.

I am excited to hear Sheryl Sandberg, COO of Facebook, speak later this month at SHRM’s Annual Conference & Exposition in Chicago.

Sheryl is best known for her 2013 book Lean In. In this blog post, I want to focus on the book she wrote last year, Option B, with her friend and professor at the University of Pennsylvania, Adam Grant.

Option A is the employee’s life with a loved one. Option B is surviving without him or her

Option B is based on Sheryl’s loss of her husband, Dave, and her painful but inspirational journey forward. While the book is primarily about emotional resilience, it also provides valuable lessons for HR and other leaders. Here are seven:

  1. Do not avoid discussing the issue for fear you will remind the person of the loved one he or she has lost. Do you really think he or she can forget?
  2. Do not avoid the person. We may do that consciously or unconsciously to avoid the discomfort associated with the issue. Even Sheryl said she felt isolated. Try being as strong as the person suffering.
  3. Ask “How are you today?” rather than “How are you?” As she notes, this shows that you recognize there is something bigger than the day going on in the person’s life without expressly saying it.
  4. Don’t ask “What can I do?” She explains that this puts the burden on the person struggling to help you help them. Instead, offer a specific way you can help.
  5. Do something specific. Tell the person you are thinking of her. Buy him coffee. Send her a book by an author she likes. Just do it.
  6. Don’t say things that unwittingly diminish your colleague’s pain, such as “He’s in a better place.” Are you sure? Instead, tell the person you know it is hard and you are available to listen or help (but only if you mean it).
  7. Revisit your bereavement policy. You may want to add additional unpaid days that a person may take in some circumstances.

In addition to what I learned from Sheryl, I need to add a legal caution that, fortunately, is consistent with common sense.

Listen more than you talk. Do not ask if or suggest that the person is depressed or otherwise needs help. That could buy you a perceived disability claim under the ADA.

Of course, you can remind the employee of the EAP. Is there some risk in recommending the EAP? Sure. But not as much as appearing heartless.

I am excited to hear Sheryl at SHRM18. It is not too late to register.

An Epic SCOTUS Decision on Class Action Waivers

I am pleased to share my latest article, written for Philadelphia Business Journal, on a recent ruling of the U.S. Supreme Court.

By a 5-4 vote authored by Justice Neil Gorsuch, the U.S. Supreme Court held in Epic Systems Corp. v Lewis that the National Labor Relations Act does not prohibit employers from using arbitration clauses in employment contracts to prevent workers from filing class actions over workplace issues.

Some describe this as a big win for employers. I think it can be described more accurately as an opinion that creates a decision point for employers.

As a purely legal matter, some employers may prefer one class claim before a judge than the specter of a large number of individual claims before an arbitrator.

As an employee and public relations matter, some employers may elect to exclude sexual harassment claims from any ban on class claims for the same reason that some employers are voluntarily taking the position that their mandatory arbitration agreements do not apply to any sexual harassment claims.

As a public policy matter, the decision likely will rejuvenate support for the Senate Bill entitled Ending Forced Arbitration of Sexual Harassment Claims, which has bi-partisan sponsorship.

The bill goes further than its title suggests, preluding mandatory arbitration of any claim of sex discrimination that could be brought under Title VII, such as pay equity claims, even if Title VII is not mentioned.

It should be noted that a bill that restricts mandatory arbitration, if applied only to sexual harassment, may not be as partisan as most of what we see in Washington.

In February, all 50 state attorney generals, Democrats and Republicans alike, signed a letter to Congress demanding that the law be changed to preclude mandatory arbitration of sexual harassment claims.

This would not be first time a Supreme Court decision spurred legislative action. Remember Lilly Ledbetter‘s loss before the high court only to have congress enact a law with her name?

Stay tuned—this story is far from done!

Why Holocaust Remembrance Day Matters: 2018

I am pleased to share my latest post to The SHRM Blog on the continued importance of Holocaust Remembrance Day.

The United States Congress created the Days of Remembrance as our nation’s annual commemoration of the Holocaust.  This year, Holocaust Remembrance Day (Yom HaShoah) is today, Thursday April 12, 2018.

During the Holocaust, more than 11 million human beings were systemically murdered.  That includes 6 million Jews, 2/3 of the European Jewish community at that time.  That percentage still boggles my mind.  In my family, the percentage was much higher.

But the numbers would have been even worse were it not for the countless “righteous gentiles.”  The term “righteous gentiles” is used to refer to those who are not Jewish and who risked their lives to save Jews during the Holocaust.  They are specifically honored in Israel and throughout the world.

Today, I share with you a link to some of their stories. Please read about these heroes. Their stores are beyond inspiring.

On a personal note, I thank the Polish Church that hid my great aunt at their peril. Her daughter later adopted children from that same Church. .

And, of course, there were the millions of American and other service men and women who lost their lives in fighting Hitler’s machine.  They, too, cannot be forgotten.

I share this link to one story of their bravery.  You can find so many more by  using Google.

Unfortunately, this year Yom HaShoah feels more significant than ever, at least to me. Anti-Semitic acts and attitudes are, according to numerous reports, at post-Holocaust highs worldwide.

So what does this have to do with Human Resources?  Of course, one connection to Holocaust Remembrance Day is the “human” in human resources.  But it is more than just that.

This is not a day or week in which we celebrate the achievement or contribution of any group or people.  In remembering the Shoah in our workplaces, we are reminded of how important it is that we brook no hate.  It is also a time to recognize those employees whose lives were affected and shaped by this horrific period in history.

One way to do so is simply to post on your Intranet a remembrance statement.  You can find words and images all over the Internet. You still have time to do something today.

This is also a great topic for a diversity and inclusion program . The diversity in experience but the universal message that includes all:  we cannot tolerate intolerance against any faith, race, ethnicity, etc.

Include in your anti-harassment training examples of Anti-Semetic comments or actions. Of course, this must be in the context of religion harassment more broadly.

And, of course, every day, we must do our best to make sure that hate has no place in our workplaces.  A strong policy is not enough. When it comes to hate-based harassment, if you are in human resources or other leader, there is no such thing as a “passive bystander.” To ignore is to be complicit.

As Jews, we often say “Never Again.”  And, when we say that, we mean to anyone–at any time–anywhere.

Shalom (Peace) to all.

#MeToo: Marrying Compliance with Culture

I am pleased to share my latest post to The SHRM Blog.

No one can credibly deny that sexual harassment is a persistent and pervasive problem.  It infects all industries; none is immune.

While this blog focuses on sexual harassment, we must create cultures that do not tolerate any kind of harassing behavior, such as harassment based on race, ethnicity, age or disability.  Harassment of any kind is the enemy of inclusion.

As employers, we must protect from harassing conduct not only our applicants and employees but also others who work with them. At the same time, we must ensure that there is due process for those who are accused of causing harm; after all, not every complaint is necessarily true.

In all cases, however:  every complaint must be taken seriously; every complainant must be treated with respect and dignity; and every investigation must be conducted promptly, thoroughly and impartially.  The process by which we investigate harassment claims plays a key role in determining whether employees–as complainants, witnesses or accused–trust the process.

If a company concludes that someone has engaged in sexual assault, unlawful harassment or harassing behavior, even if the harassing behavior is not “bad enough” to be unlawful, an employer must take prompt and proportionate corrective action.   Sometimes, but not always, that means termination.

Of course, no matter how strong our commitment to avoiding harassment may be and appropriate corrective action where unacceptable conduct has occurred, our commitment will not be realized, unless there is a culture that does not brook retaliation by anyone of any kind. If people are afraid of retribution, they won’t speak up, the process will fail and individuals will suffer in silence.

To ensure there is neither harassing nor retaliatory behavior, employers must focus on compliance.  This includes, by way of example only, a strong anti-harassment policy with a robust complaint procedure and strong assurances against retaliation.

We also must train our leaders not only to avoid bad behavior but also to call it out “in the moment” if they see or hear it.  To be silent is to be complicit, and the cultural message  resounds loudly.

Our compliance efforts should reflect and reinforce a culture where respect is expected and harassing and other bad behaviors are shunned, indeed condemned.  In a strong culture, you don’t get along by going along with harassing conduct. You get along by treating colleagues respectfully.

This is not to suggest compliance is irrelevant and culture is everything.  The key is to marry culture and compliance.

Your compliance efforts should improve your culture and your culture must inform your compliance.  Bottom line: our compliance efforts must become part of our cultural DNA.

4 Red Flags That Administrative Work is Sucking the Life from Your Team

I am pleased to share my latest article posted to Entrepreneur.

Entrepreneurs live to create, develop and refine products and services. They love using creativity to make a difference. The smart ones know they need the support of those who are comfortable with administrative stuff. Somebody has to make the trains run on time!

Administrative work needs to be valued but, over and over, I hear entrepreneurs complain they spend too much on administrative work of questionable value. “Administration” can become a behemoth that crushes creativity and steals time. Here are four red flags that administration may be interfering with your mission.

1. To get an answer you have to talk with many people.

If you regularly need to speak with five people to get one answer, you have a problem. Time is not only money but also energy. When no one knows the whole picture, then those with power will have more power but at the expense of profitability and the sanity of the employees.

2. Regularly hearing “not my job.”

Most employees sincerely want to do a good job. More often than not, employees welcome the opportunity to expand their skill. Of course, there is the occasional employee who will say “not my job.” But, what if that is something you routinely hear from different people in different words or ways?

The pattern may speak volumes. As insane as it sounds, the employees may have been instructed not to help. Use your people skills to ask directly and respectfully why the resistance. Listen not only to what is said but also what is not said. You may find the employee is uncomfortable with not helping as you are in getting the help you need. But, the employee is simply following orders.

3. Rigid rules instead of value-based rules.

We need values-based rules, such as not tolerating harassing conduct, and to enforce such values-based rules aggressively. This is different from rigid rules relating to operations that have no relationship to values or the evolving nature of business.

Every organization must have structure. But, some rules are implemented just to give those who enforce them power. In other cases, a rule may have made sense at a given time but no longer does. Ask why the rule exists. Sometimes people don’t even know why they have rules other than, “We always have done it this way.”

Other times the rules assume the worst of all employees. Guess what: that’s what they bring out, too.

4. Redundant paperwork.

A friend of mine refers to the term as “administrivia.” The more forms, the better. To increase the torture, administration insists on multiple signatures. Worse yet, only certain people can fill out those forms. A salesperson I met took a job for less pay because she was tired of filling out forms rather than taking care of customers.

If you are considering applying for a job with the government to escape the behemoth bureaucracy that hides under the label of administration, you have a problem.

What do you do? Stop complaining about administration if you feel your administrative function is out of control. Make sure those in leadership know where administration provides support or where it creates unnecessary obstacles.

If you provide factual concrete examples to leadership where administration provides unnecessary obstacles, you should get relief. If not, you may need to look to another employer to provide it.