Category Archives: In The News

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.

Bystander Interventions Without Paternalism or Re-victimization

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

Responsible employers, among other steps, train managers on their “bystander” obligations. It is not enough to refrain from bad behavior. As a bystander with power, if you see or hear harassing behavior, you must respond to it. But how?

Let’s take a “hypothetical.” A business meeting takes place among executives.  There are four men and one woman.  During the meeting, the group realizes they are not going to meet Wall Street’s expectations. One of the men snaps “oh F…”

After he said it, the F bomber looks to the one woman at the table and says, “I’m sorry.” Another man at the table digs the hole deeper by adding:   “He did not mean to offend you.” [How did he know that?]

By focusing on the one woman at the table, both male executives not only drew attention to her (re-victimization) but also suggested that she was a fragile creature who needed to be rescued and protected from their vulgar mouths (paternalism).

In this hypothetical, the woman was not offended by the expletive when it was used in response to bad economic news.  But she certainly did not like the attention being placed on her.  Having finished reading Jane Austin, she was not going to fall off her Victorian chair because of a curse word.

In this case, if anything were to be said, it should have been: “let’s keep it professional” but without focusing on the woman.

Change the facts: what if what was said was a “joke” that demeaned women? Should not someone apologize to her now?

NO!  Again, that only makes her the focus.  In other words, it makes it worse.  Plus, it suggests, were she not there, the demeaning comment would have been okay.

The focus should be on the person who made the comment.  Looking at the person who said it, someone with power (including HR) should say: “That is offensive to me. We will talk later.”

Respond “in the moment” so that others do not assume your silence is complicity. Then, take appropriate corrective action more confidentially.

Preventing harassment is more than preventing liability; it is about preventing harm. We need to train on “in the moment:” responses to bad behavior, or we may create harm in the process of trying to correct it.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Construing a Continuum of Harassing Behaviors

I am pleased to share my latest article posted to Bloomberg Law Insights.

We hear many people use the terms “sexual misconduct” or “sexual harassment” to describe a continuum of harassing behaviors. Further, more and more employers are adopting or reissuing “zero tolerance” policies for such collectively defined behaviors.

Of course, we must put an end to the litany of horrific behaviors to which women (and some men) have been subjected. There is no defense to the indefensible.

But we also need to be careful not to use a single label to describe a broad spectrum of unacceptable conduct. For example, we all know that a sexually suggestive comment on someone’s appearance is objectively unacceptable. However, if we put that comment in the same category as sexual assault, we risk minimizing the seriousness of the latter by lumping it with the former.
That is part of the danger in zero-tolerance messaging. At first blush, “zero tolerance” sounds good. However, it may be heard as suggesting that, regardless of the severity of the unacceptable conduct, the
wrongdoer will be terminated.

This is dangerous because it may discourage victims who just want the problematic behavior to stop from reporting it because they do not want the wrongdoer to be terminated. Yes, she (or he) will not be a
silence-breaker but instead will suffer in silence to avoid someone else’s suffering more.

Zero-tolerance messaging is dangerous for another reason. A leader who becomes aware of unacceptable conduct by a star performer may not report it for fear that the star will be terminated. The thinking is entirely unacceptable but it is also foreseeable.

So, instead of lumping all behaviors under one label, we need to look at a hierarchy of bad behaviors. Instead of applying corporate capital punishment in every case, we need to take proportionate corrective
action based on how bad the conduct is. At a very minimum, the corrective action must be reasonably calculated to deter further unacceptable conduct.

With this background, here is a hierarchy of behaviors that constitute misconduct or harassment for employers to consider when preparing policies, training programs, investigations, and corrective actions.

1. Lack of Respect/Civility
The law does not require that employers be respectful or civil. Yes, an executive can yell and intimidate its employees, so long as it does not target employees for such hostile conduct based on their gender,
race, religion or other “protected group” status.

While such unacceptable conduct does not violate the law, it violates human decency. Plus, it is bad for business. Employees who are bullied (as well as those who witness it) underperform, if they do not leave
for a better workplace.

Further, disrespectful or uncivil behavior creates fertile soil for harassing behavior that may break the law. One witness who testified before the EEOC Select Task Force on Harassment called incivility the
“gateway drug” to harassment.

For all of these reasons, employers are well advised to respond to disrespectful, uncivil and abusive behavior, even if not unlawful. While employees may call such behavior harassment, employers must be
careful to avoid the label. It may not be.

2. Gray Areas
Telling a colleague that her or his new suit is “sharp” at a social event is not harassing behavior. Conversely, telling that colleague she looks “hot” in that new suit is harassing behavior. Let’s leave what is clear and enter the land of gray.

What if a male colleague tells a female colleague she looks “attractive” in that suit. He may mean “nice,” but his use of “attractive” may be heard as “hot.” The same word may have very different meanings between the parties to the communication.

We all need to be more thoughtful about what we say and do. If a word can have a sexual or suggestive meaning, then find another word.

As employers, we need to keep in mind that not all cases are as black and white as those we have read or heard about during the last few months. In some of the complaints we receive, the conduct falls into gray areas. In such areas, at least for the first instance of such conduct, proportionate corrective action may consist of non-punitive coaching or counseling.

3. Sexually Harassing but Not “Bad Enough” to Be Illegal
Under federal law, for sexual harassment to be actionable, among other factors, it must be severe or pervasive. Some state or local jurisdictions, such as New York City, have established lower hurdles that
must be met for conduct to be actionable.

So, at least under federal law, the following behaviors, in and of themselves, probably do not constitute unlawful conduct:
• a sexist “joke”;
• an inappropriate comment of a sexual or suggestive nature; or
• a leer or a gawk

To prevent harm to employees and to avoid legal liability, employers should respond to sexually harassing behavior, even if the behavior in and of itself is not unlawful. In an employer’s preventive efforts, this message must resonate loud and clear. An employee does not have to violate the law to violate the employer’s policy.

However, in taking corrective action in these circumstances, employers should avoid the legal label. Use “sexually harassing behavior” rather than “sexual harassment.”

But, even here, distinctions must be made within the category of “sexually harassing behavior.” For example:
• If an executive makes a degrading comment about women, it is worse than if a lower-level employee
does the same. Power magnifies the wrong.
• If a lower-level employee makes a degrading comment about women, it is worse if he has done so before and been warned not to do it again.

The label we apply to this category of unacceptable conduct does not alone dictate the nature of appropriate corrective action. What is proportionate also may depend on myriad other factors.

4. Sexual Harassment
Some conduct, in and of itself, constitutes sexual harassment.

The clearest example is when a supervisor or other higher-ranking employee conditions the granting of any term, condition, or benefit of employment on a subordinate’s submission to sexual advances or
punishes the subordinate for not submitting to them. This is often what is referred to as “quid pro quo” harassment, that is, “this for that.”

Another example may be use of the “C” word. Some courts have found that saying the “N” word once may create a racially hostile work environment. A court very well could find that using the “C” word once
may create a sexually hostile work environment.

If conduct is or may be sexual harassment in and of itself, the proportionate corrective action is almost always termination. I say “almost always” rather than “always” because there could be an exception,
such as if the employee’s supervisor used the same hate word and the subordinate said he went “along to get along” with his supervisor. In these circumstances, the supervisor should be terminated. The case of the subordinate may be less clear.

While the severity of the conduct in these cases must inform the level of corrective action, employers still may wish to stay away from the legal label. Employers can do what is right for their employees without
necessarily making what may be argued to be an admission of liability.

5. Sexual Assault
In some high-profile cases, we are dealing with more than the civil wrong of sexual harassment. We are dealing with a criminal wrong: sexual assault.

If, after an appropriate investigation, an employer concludes that there has been a sexual assault, there is only one proportionate remedy: termination.

In this regard, it is important to emphasize that law enforcement may have elected not to pursue the matter does not mean the employer should ignore the matter. While the determination by law enforcement may be one factor an employer may consider, it rarely will be determinative.

Even where an employer concludes there was a sexual assault, such as grabbing a woman’s breasts or genitals, the employer still is better off avoiding legal labels and describing the behaviors.

Conclusion
While there is a continuum of bad behavior, each category does not exist in isolation. We need to recognize that each level of the hierarchy of bad behavior creates a cultural environment where the next level of bad behavior is more likely to occur. Just as lack of civility can be the “gateway” to sexual harassment, sexual harassment can be the gateway to sexual assault. We must have zero tolerance to bad behavior but with a proportionate response to how bad the behavior is so that the bad behavior is not repeated or becomes worse.

This article is not legal advice and does not apply to specific factual situations.

Advice for Managers: What I Learned from the Matt Lauer Revelations

I am pleased to share my latest post to Philadelphia Business Journal.

When allegations initially were made against Harvey Weinstein and Kevin Spacey, I admit I was not surprised. While I was not aware of their reputations, I always found both of them somewhat “creepy.”

When multiple individuals came forward corroborating each other, it became clear that we are dealing with serial harassers. Again, I was not surprised.

This is important because the additional evidence confirmed my emotional reactions to them. I know enough not to make investigatory findings based on an emotional pre-disposition, but everyone who conducts investigations needs to be aware of their own emotional predispositions so that investigations do not end up with “confirmation bias.”

Then, came the termination of Matt Lauer. I was, to put it mildly, shocked.

For many years, I started my mornings with Katie and Matt. I respected and like both of them. I had “welcomed” them into my home.

While Matt Lauer denies some allegations, he has admitted wrongdoing. In his first public statement since being fired from NBC’s “Today” show, Lauer said “Some of what is being said about me is untrue or mischaracterized, but there is enough truth in these stories to make me feel embarrassed and ashamed.”

I thought Matt was smart and likeable. More importantly, my sense was that he was a decent man.

So, when the allegations against Matt Lauer were released, and more women have since come forward, I thought: “this does not sound like Matt Lauer.” Of course, I don’t know him but his conduct as it has been revealed did not comport with my perception of him.

In workplaces, managers routinely receive complaints about other employees who allegedly have engaged in harassment. How they respond is incredibly important.

I was aware of my emotional reaction to Weinstein, on the one hand, versus Lauer, on the other hand. But what if my emotional reactions were reflected in my verbal responses as a manager.

What if I had said, about Weinstein, “I’m not surprised.” That would have suggested knowledge, even if not the case.

What if I had said, about Lauer, “That does not sound like Matt!” I would have been diminishing the allegations based on how I perceived the alleged wrongdoer.

When we train managers, it is absolutely critical that we provide them with guidance on how to respond “in the moment” to allegations of harassment. If we don’t, they may focus on how they feel and not the woman (or man) before them.

In my view, the appropriate response to a complaint starts with: “Thank you for bringing your concerns to my attention. We take them very seriously.”

Yes, it is human to have an emotional reaction based on your view of the individual who allegedly has done wrong. But, it is inappropriate to share that reaction when someone has the courage to step forward, regardless of whether you end up being right or wrong.

The truth is that none of us knows for certain who would–or would not–engage in sexually harassing behavior. That’s why investigations are so important, without assumptions, one way or the other.

I believe that Lauer is sorry. I hope that it is not simply because he got caught.

I thought I knew Matt Lauer. I was wrong.

Men Must Do More to End Harassment

But again we have been rocked by explosive allegations of sexual harassment and sexual assault. In the case of Harvey Weinstein, there are now more than 30 women who have stepped forward. Weinstein admits to bad behavior but claims it was all consensual. From what I have read, this is not a good defense, even for a science fiction movie.

Weinstein is far from the only predator in Hollywood, and Hollywood is just a symptom of the problem. The casting couch can affect who gets plum assignments, leads, contacts, etc. in any industry. Few men with power would ever consider, let alone engage in, the kind of conduct engaged in by Weinstein and others but they must do more than just refrain from the indefensible. With power, men have the opportunity, indeed the obligation, to create cultures where harassment does not flourish. So what do we do?

1. Stand up in the moment.
You don’t need to have a daughter to stand up. You just need a conscience and a spine. So speak up if you see or hear bad behavior. To be silent is to condone. Yes, the worst behaviors are very often private but sometimes they are accompanied by less serious but still bad public behavior. For example, don’t laugh at the sexist jokes. Instead, make clear they are offensive to you and then take corrective action.

The less serious public behaviors may be but the tip of the iceberg. Where appropriate, engage a third party to see if there is more than meets the eye. Climate surveys by skilled professionals can uncover what has not been reported without creating claims where none may exist.

2. Don’t wait for the direct complaint.
The victims of harassment frequently are embarassed or feel unwarranted shame. Some women won’t vocalize their discomfort but instead avoid the harasser or become uncomfortable when his name is mentioned. Observe closely for, and listen carefully to, signals that something may be wrong.

There won’t always be signals. But where there are warning signs, think about how to offer your help in a way that respects the recipient and does not create an issue where there may not be one. This can and has been done successfully.
3. Create additional reporting vehicles.
Fear of retaliation is a great inhibitor of timely reporting. So you may want to take a look at your company’s policies and at least consider having a procedure by which employees can report complaints externally, even anonymously.

Not every complaint is true and that applies to anonymous complaints, too. But every complaint should be taken seriously, and I have been involved in matters where the ability to report externally and anonymously has led to the facts that resulted in the unmasking of a serial harasser. So consider the option.

4. Hold other leaders accountable.
Harassers sometimes generate big bucks and that is why individuals sometimes cover up for, and even truckle up to, them. You need to cross their bridge to get meaningful work and the money that goes with it. Make clear to other leaders that you expect them not only to refrain from harassing behavior (severe or subtle) but also to report to a designated person or entity complaints or potential problems which they see, hear or of which they otherwise become aware. Ostriches don’t make good leaders.

As with all expectations, reward those who live up to them and punish those who don’t. Your organization is only as strong as its reputation and it can be destroyed if leaders are passive bystanders.

5. Model what you expect.
Most of all, men in power need to be good role models. There is nothing cool about demeaning women. The abuse is both powerful and pathetic. There is no defense to the indefensible. Sexual addiction is no more a defense to harassment than alcoholism is to driving drunk.

Speaking of alcohol, it is a major risk factor. Some cultures celebrate alcohol and such alcohol-centric cultures take away any slim inhibitors that otherwise might exist. Bottom line: it’s on men. Any questions, pal?

This column was originally published on Entrepreneur.com on 10/20/17.

The Role of HR in Smashing Harassment

Please read my latest post to The SHRM Blog on the importance of HR in stopping harassment.

I have been thinking a lot about Harvey Weinstein and other high-profile cases of serial sexual harassment. These cases are extraordinarily disturbing, to say the very least.

There are some who have suggested that the Weinstein nightmare is simply a Hollywood problem, dismissing it as nothing more than the age old “Hollywood casting couch.”  How patently wrong they are.

Hollywood needs to clean up its act, but it is not just Hollywood. What happens in Hollywood is but a symptom of a much broader societal problem.

Predatory sexual behavior by men with power exists in every industry. Of course, women can engage in harassment, too, but I am not aware of any women who have exploited their power to harass men or women in the way Weinstein and other men have done.

This is not to suggest that all men with power abuse it in such a heinous way. But leaders in general and men in particular must do more than avoid what is wrong, and behavior is wrong long before it rises to the level of what has been reported in the high-profile cases. By their words and their actions, leaders must make the organization’s anti-harassment policy a true reflection of corporate culture.

HR plays a critical role in this battle. Publicly, HR professionals must stand up to harassment and implement holistic programs to prevent it from occurring. But not all preventive efforts will be successful.

When bad behavior happens, there must be consequences. More quietly, HR has and will continue to play a key role in helping to remove from workplaces those who abuse their power and assault the dignity of others.

On social media, I have seen some ask whether HR is protecting the employer or its employees. The answer is both.

HR must protect employees and, in doing so, it protects the business from legal and reputational risk. There is a reason that the “H” in HR stands for human.

Recent events do not create a new issue for HR to tackle. The best HR professionals are already all over it.

But HR has an opportunity, indeed an obligation, to ask itself: What more can be done? The HR professionals with whom I speak are asking questions along the lines of:

  • How do we ensure that leaders do not simply pay for but attend anti-harassment training and make clear their support for it — again, by their words and actions?
  • What is the best way to assess whether there may be a culture of complicity and, if there are complicit people with power, how do we best incent them to do what is right and stand up to what is wrong?
  • Knowing that many women who feel harassed do not bring claims out of fear, how can we create complaint procedures and environments in which employees do not fear retaliation if they raise or support concerns?
  • How do leaders respond “in the moment” to unacceptable conduct without engaging in paternalistic rescuing or re-victimization?
  • Other than thanking an employee for bringing any concerns to their attention, what should leaders say (or not say) when an employee has the courage to open up to them?
  • How can we respect the strong desire of many victims of harassment to keep the matter as confidential as possible but still send a strong message that the company will not brook unacceptable conduct, severe or subtle?
  • What are some promising practices to remind employees throughout the year of the reporting mechanisms, assurances of non-retaliation and harassing behaviors that must be avoided, recognizing that, even in the best cultures, training once a year may not be enough?

These and other questions require careful thought. Our employees deserve nothing less.

But one point must be crystal clear in every organization: The more power you have, the more is expected of you. Those who abuse their power must be met with prompt and proportionate corrective action.

In some cases, this will mean terminating the rainmaker. But if you ignore, or worse yet protect, him, a jury can and will take away all the rain. Plus, values matter.

While I am horrified by recent events, I have some hope by the response I see in the HR community. But HR cannot do it alone; it does not “own” civility.

Every leader must join the battle. It is one of the moral imperatives of our time.

Segal was appointed to and served as a member of the EEOC’s Select Task Force on Harassment. However, Segal speaks for neither the EEOC nor the taskforce.            

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP

95 Million Reasons to Conduct an I-9 Self Audit…Very Carefully

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

In 2009, the Department of Homeland Security (“DHS”) began auditing the I-9 practices of Asplundh Tree Experts Co.  Last month, the Company pled guilty in Pennsylvania federal court to a charge of knowingly employing immigrants without authorization to work in the U.S.  The fine: a record $95 million.

In response, more and more employers are considering self-audits before DHS comes knocking at their doors.   While employers are well-advised to conduct an I-9 self-audit, there are legal minefields that need to be navigated or the self-audit may increase the employer’s potential liability.  Here are but some examples:

  • In the interest of being super compliant, some employers have considered having all employees execute new I-9s.  This is not super compliant, but rather super dangerous.  It raises serious discrimination risks under the Immigration Reform and Control Act (“IRCA”).
  • Other employers have questioned whether the Trump Administration’s Executive Order on DACA workers (Dreamers) requires that employers complete new I-9s for these DACA workers.  The answer is an unequivocal “NO.”
  • Employers cannot select for inspection employees they perceive to be high risk, such as those on visas, or those with “foreign-sounding” last names.  This type of targeted audit raises all but certain liability not only under ICRA but also the employment non-discrimination laws.
  • Inevitably, employers may find that some I-9s are missing.  In these cases, employers should complete new I-9s, dating them on the date in which they are completed.  NEVER back date.
  • In other cases, employers may find I-9s that are incomplete.  In these circumstances, the employer, using a different color ink, should have the document completed (either by the employer and/or the employee, depending on the omission) and, again, the employer should date the change on the date in which it is made.
  • In still other cases, there may be a mistake.  No employer ever should white out anything on the original I-9.  Rather, the employer, in a different color ink, should cross out the incorrect language, substitute the correct language and date same on the date the change is made.
  • The employer should prepare a summary of the scope of the audit, the manner in which it was conducted, and its findings.  But this is another blog for another day.

This blog should not be construed as legal advice.

Florida Employers: Wage and Hour Considerations and Hurricane Irma

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

Just as Texas begins its slow recovery from Hurricane Harvey, Florida braces for Hurricane Irma. So, we must, again, look at wage and hour rules:

  1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed. However, you generally can require that an exempt employee use PTO during a day in which you close.
  2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day. If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time. You also must pay him or her if he or she does any work from home.
  3. There is no legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week. Under the FLSA, they must be paid if you close due to the hurricane for less than full work week and they do any work in the work week, whether it be few or many.
  4. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.
  5. Also, if non-exempt employee works at home, you must pay for all time worked. Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid. Remember, break rules apply to working at home too.
  6. Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.
  7. Thankfully we all know that no employee should be told to put themselves at risk to come to work. Just in case there is a manager who does not know this, you should make sure they do. Thoughts and prayers to our colleagues and their workers in Houston and its surrounding areas.