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Monthly Program & Luncheon
TOPIC: Social Media Recruiting - What’s Legal and What’s Not
WHEN: June 5, 2014
TIME: 11:30: Lunch, Networking, & Announcements 12:00 Program
WHERE: Hilton Garden Inn 3081 University Dr. (east side of Highway 6, across from Veteran’s Park)
COST: $12/ BV-SHRM member $15/ non-members Note: The guest price is now $15
SPEAKER: Rachel Hale, Attorney, Hagan Law Group and People Performance Resources
RSVP: Please RSVP by noon, Friday, May 30 to [email protected]. MENU: BBQ sausage and sliced beef brisket, baked beans, salad, bread, pickles,
onions, iced tea and water
Program Details
BV-SHRM Newsletter CHAPTER NO. 0330 JUNE 2014
SPEAKERs BIO
“Social Media Recruiting - What’s Legal and What’s Not” There’s no question that social media is changing the way business works -- and the trend goes well beyond
marketing. Savvy companies are looking to social media trends to assist with their recruiting and hiring. During this review, we will look at:
The Importance of Recruitment
The Latest in Social Media
The Benefits of using Social Media
The Legal Pitfalls
- Title VII and other discrimination laws
- Privacy Laws
- National Labor Relations Act - Fair Credit Reporting Act
- Current and New Password Protection laws in some states
- Pending Legislation We will present three recruiting scenarios for discussion. The summary will include specific Best Practices
going forward in an employer’s use of Social Media.
Rachel Hale’s practice focuses Human Resources legal solutions, best practices and compliance. Rachel worked for more than 14 years as a Human Resources Professional with Texas Health Resources and American Airlines. Rachel is an attorney, licensed in the State of Texas, and a graduate of Texas A&M University School of Law (formerly known as Texas Wesleyan University School of Law) where she was a member of the school's Arbitration Team and a Graduate Research Assistant, performing research in all areas of HR law. She also holds a M.S. in Business and Human Relations. Rachel regularly speaks and provides training to HR and business professionals through DallasHR, MidCities HR and the HR Southwest conference.
June’s Program and Luncheon proudly
sponsored by:
BBBrrraaazzzooosss VVVaaalllllleeeyyy BBBooommmbbbeeerrrsss
BV Bombers Baseball invites you and your employees to enjoy a
game with us!
For more information
Website:
www.bvbombers.com
or contact Colby Street
979-422-1953
Would your organization like to be featured here?
Contact Diana Dean about sponsorship opportunities at
Please notify Krystal
Broussard of any
changes to your contact
information. [email protected]
Board Officers
President
Katherine Kleemann
President Elect Retha Youell, SPHR
VP of Programs Sarah Tobola, SPHR
VP of Membership Lee Felder, SPHR
Treasurer
Krystal Broussard, PHR
Secretary Dwayne Walters, SPHR
Past President Geanna Kincanon, SPHR
Directors & Chairs
Certification Director Max Anne Jones
College Relations Director
Tami Overby
Diversity Director Liz Galvan, PHR
Government Affairs Director
Windelan Johnson, PHR
Public Relations Director Stacy Overby, SPHR
SHRM Foundation Director
Thom Holt, SPHR
Workforce Readiness Director Jennifer Cabezas
Hospitality Chair
Kimberly Williamson
HRSW Ambassador Chair Cheryl Young, SPHR
Newsletter Chair
Lisa Villalobos, PHR
Business Seminar Chair Diana Dean, SPHR
Social Engagement Chair Melissa Green
Website Chair Bob Hensz, SPHR
Make sure you notify us of email
changes or changes to your contact information!
Visit us and become a Fan of BV-SHRM on
Are you ? BV-SHRM is.
BV-SHRM has created a LinkedIn
account and we encourage members to
connect with us through this social media.
Chamber After Hours
June 19, 2014, 5:30-7:00 p.m.
Scott & White Hospital
BV-SHRM Monthly Meeting (Note date change!)
July 10, 2014, 11:30 a.m.-1:00 p.m.
Hilton Garden Inn
EEOC’s 17th
Annual EXCEL Training Conference
EXamining Conflicts in Employment Laws
August 12-14, 2014
San Diego, CA
http://www.eeotraining.eeoc.gov/EXCEL2014/index.htm
HR Southwest
October 5-8, 2014
Ft. Worth, TX
Registration opens Mar. 3
2014 Workplace Diversity Conference & Exposition
October 13-15, 2014
New Orleans, LA
Sheraton New Orleans
Mark Your Calendars
DDIIVVEERRSSIITTYY MMAATTTTEERRSS
Diversity Dates for June LGBT PRIDE MONTH
Commemorates the anniversary of the June 28, 1969 Stonewall riot in New York City, the incident that initiated the modern gay rights movement in the United States. LGBT (lesbian, gay, bisexual and transgender) Pride Day is the last Sunday in June. June 4–5 SHAVUOT • Jewish June 8 PENTECOST • Christian
Race Unity Day • Bahá’í June 12 ANNE FRANK DAY
LOVING DAY June 14 FLAG DAY June 15 FATHER’S DAY June 19 JUNETEENTH June 22 FEAST OF CORPUS CHRISTI • CHRISTIAN/U.S. June 20 WORLD REFUGEE DAY June 21 SUMMER/JUNE SOLSTICE
June 28–July 27 RAMADAN • Islamic
Thanks and kudos!
Congratulations to our Student Chapter!
TAMU SHRM sent two teams to the conference this year thanks to the Department of
Management at Mays - one undergraduate team consisting of 5 individuals and a graduate
team consisting of 4 individuals. The conference was held in Phoenix, AZ on March 28 -
29, 2014.
The graduate team won first place and spent quite a bit of time practicing with faculty and
staff at TAMU. They received $2,500 that will be sent to TAMU and will likely be used for
future funding for the graduate students. All four members also received full payment for
the 2014 Annual Conference & Exposition in Orlando this summer. The names of the
graduate team individuals are as follows: Amanda Roeth, Sergio Moreno, Candice
Choe and Mary Gaski.
The undergraduate team did not place first or second and will not likely know actual
ranking until later this summer. The participating members were: Kelsey Neystel, Ashleigh
Prowse, Jasper Pearson, Rebecca Robie, and Ciara Johnson.
We are so proud of our students!!!
Share Your Ideas
The Board always welcomes your comments and suggestions. See an interesting article online or have a process that could benefit other members? Share it with your BV-SHRM Chapter.
President’s Piece
Howdy!
I don’t know about you all, but I need a staycation. Wikipedia defines a staycation as a period in which an individual or family stays home and participates in leisure activities within driving distance, sleeping in their own beds at night. Common activities of a staycation include use of the backyard pool, visits to local parks and museums, and attendance at local festivals.
Right here in the Brazos Valley we have a lot of activities you can participate in either on your own staycation or perhaps consider a team staycation! As HR professionals we are keenly aware when our employees are dragging and their tank is empty! Just like with a staycation, sometimes that best opportunities to reenergize your team lie in your own backyard. Whether it is an impromptu team walk on a beautiful (and not yet so hot) day, a picnic lunch, or maybe even an afternoon volunteering at a local charity as a team, sometimes getting out as a group and just taking a quick staycation away from the everyday will do your body and your team good!
Of course, there is also the chance for your office team to enjoy a staycation at a Brazos Valley Bombers game as our friends from the Bombers will be sharing with us at our upcoming June meeting. We very much appreciate the Bombers agreeing to be our first ever BV-SHRM monthly meeting sponsor! Please take the time to visit their booth and give them a warm welcome. If you or your company is interested in sponsoring a monthly meeting, please contact Diana Dean, [email protected].
Please do not forget to RSVP for the June meeting by Friday, May 30 so that we can accommodate the Hilton Garden Inn’s catering timeline. We look forward to seeing you on June 5. Sincerely, Katherine Kleemann
Be on the lookout
for the above
logo!
It will be a
featured symbol
this year as we
expand the
marketing of our
chapter!
Welcome to Legal Briefs for HR, an update on employment issues sent to over 5000 individual HR professionals, in-house counsel and business owners
plus HR and legal professional organizations (who have been given permission to republish content via their newsletters and websites), to help them stay
in the know about employment issues. Anyone is welcome to join the email group . . . just let me know you’d like to be added to the list and you’re in!
Back issues are posted at www.munckwilson.com under Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.” I’m happy
to share the news that yours truly and four of my partners have been named to D Magazine’s “Best Lawyers in Dallas” for 2014. Celebrate!
School’s almost out but your education never ends . . . read on:
1. Your Presence is Not Required – The Sixth Circuit has held, in an Americans with Disabilities Act (ADA) case, that
“attendance” as an essential function of the job does not necessarily mean the employee must be physically within the
workplace, opening the door to more widespread acceptance of telecommuting as a reasonable accommodation. A resale
steel buyer for an auto company asked to work from home when needed to accommodate her irritable bowel syndrome.
The employer declined, noting that attendance at work was an essential function of the job due to the need to work with
others and engage in problem-solving as a team. The district court agreed that the request was not reasonable and
granted the employers motion for summary judgment. The Sixth Circuit Court of Appeals reversed and remanded for
further determination of whether the request to work from home was reasonable. The Court observed that advancing
technology means that the workplace is anywhere the employee can perform her duties, other resale buyers had been
allowed to telecommute (albeit on a less frequent basis than expected for the plaintiff) and there was a failure to engage
in the ADA interactive process to explore alternatives. EEOC v. Ford Motor Company (6th Cir. April 2014). Employers
have been encouraged to make “attendance” an essential function where physical presence is truly needed to perform the
job. Generally, courts prefer to avoid second-guessing employers who understand the job requirements and take care to
lay them out in a solid job description. This case is some indication that making attendance an essential function will not
always pass muster, particularly if a court feels an interactive discussion to consider alternate reasonable
accommodations did not happen.
2. NLRB Nukes Niceness – In yet another case that will have employers scratching their heads, the NLRB has found work
rules that bar “negativity” violate federal law. The work rules at issue were:
1. We will not make negative comments about our fellow team members and we will take every opportunity to speak well
of each other.
2. We will represent Hills and Dales in the community in a positive and professional manner in every opportunity.
3. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the
same as participating.
Hills and Dales Hospital had adopted these work rules in response to low employee morale, inter-department lack of
cooperation and general “back biting and back stabbing.” Employees and patients were fleeing the hospital, so an employee
task force met and developed a Values and Standards of Behavior Policy which included these rules. The ALJ, as affirmed
by the NLRB, concluded that these rules were too broad and could be interpreted by employees as prohibiting their
Section 7 right to engage in concerted activity such as public protests or making statements to third parties about their
terms and conditions of employment. The fact that the rules had been developed with employee input provided no
defense. There was no claim that an employee had been disciplined under these rules, so the remedy was to rescind the
unlawful rules. Hills and Dales General Hospital and Danielle Corlis (April 2014). The Board continues its assault on so-
called “courtesy” rules which could have a chilling effect on employees’ right to band together and kvetch about their
jobs, pay, benefits, co-workers, bosses, customers and more. Although it pains me to say so, you may want to examine your
policies and take these common-sense provisions out or narrow them to be very specific about the kind of behavior that’s
not OK.
Legal Briefs
Member Newsletter
3. Silicon Settlement – The last domino has fallen in the matter involving anti-poaching agreements between big tech
employers in Silicon Valley. The first domino fell with a DOJ investigation that concluded in a September 2010
settlement involving Adobe Systems, Apple, Google, Intel, Inuit and Pixar. The press release explained that “the
agreements eliminated a significant form of competition to attract highly skilled employees, and overall diminished
competition to the detriment of the affected employees who were likely deprived of competitively important information
and access to better job opportunities.” The next domino was an eventually successful effort to cobble together a class
action on behalf of workers who claimed the agreements depressed their job mobility and wages. The third domino was a
$20 million settlement in 2013 involving Lucasfilm, Pixar and Intuit, prior to certification of the class. The final domino
fell with the remaining defendants (Apple, Google, Intel and Adobe) settling in April 2014 for more than $300 million,
after certification of the plaintiff class and failure of the employers’ motion for summary judgment.
4. At Will Alive and Well in Texas – Employer decides to spin off a work unit into a new subsidiary. Many of the affected
employees are covered by a collective bargaining agreement (CBA) which gives them the right to transfer to other jobs at
the company rather than move to the new subsidiary. The employees were worried that the employer would sell the
subsidiary and their wages and benefits might be reduced by a new employer. The employer allegedly assured the
employees that they would keep the subsidiary, even though the employer was already in negotiations with a potential
buyer. Most of the employees decided to stick with the subsidiary and a few months later, a sale of the subsidiary was
announced. The new employer did reduce both the pay and retirement benefits of the acquired employees. A group of
the employees sued their former employer for fraud over the misrepresentation that the subsidiary would not be sold.
The employer countered, saying the employees were “at will” and could not sue for fraud. The Fifth Circuit Court of
Appeals certified questions to the Texas Supreme Court, for input on whether at-will employees could sue for fraud
arising from loss of employment and whether the union employees (whose CBA had a “just cause” limitation on discharges
from employment) could do the same. The Texas Supreme Court answered “no” to both. On the first question, the Court
noted there is no duty of good faith and fair dealing on employers and that an illusory promise of at will employment
cannot support a fraud claim. On the second question, the Court said the employees could not bring a fraud claim because
they already had a contractual remedy available to them under their CBA. Sawyer et al v. E.I. Du Pont De Nemours and Company (Tex. April 2014).
5. I-9s and the Three Bears – Employers may want to remind themselves that verifying applicants’ and employees’
authorization to work in the U.S. echoes the lesson learned in the tale of the three bears. You can get in trouble if you do
not get enough information. You can get in trouble if you ask for too much (or the wrong) information. You need to shoot
for the “just right” middle option, as strictly defined in the regulations. One Texas employer was tagged by the DOJ for
requiring existing employees who were lawful permanent residents to present new documents when their Permanent
Resident cards expired. The regs explain that their authorization to work is permanent, even when the card expires. The
employer was also accused of asking permanent residents to produce specific documents during the employment
application process, instead of allowing them to show any combination of acceptable documents as explained on the Form
I-9. The damage? $43K in civil penalties, mandatory training on the antidiscrimination provisions of the INA and 12
months of monitoring by the DOJ. Not a fairy tale ending.
1. I-9 Verification OK Via Webcam? - In a word, no. Employers asked USCIS if observing a new employee’s
documents via webcam would be OK, where the employee is in a remote location which makes it impossible for the
employer to physically handle and examine the documents before attesting to their authenticity on the Form I-9.
The USCIS said “no” and suggested that employers designate an authorized rep for that duty. The employer remains
liable for any paperwork violations, so make sure that your designee is schooled in proper completion of the form.
6. Hairy Situation – In LB4HR #9-2013, I wrote about a lawsuit filed by the EEOC against an insurance company after it
rescinded its job offer because the applicant refused to cut off her dreadlocks in conformance with the employer’s
grooming standards. The EEOC claimed this action was discrimination against African-Americans based on their physical
and/or cultural characteristics. The suit is over and the employer prevailed on its motion to dismiss the Title VII lawsuit
on a showing of numerous cases where grooming policies did not support a race claim. EEOC v. Catastrophe Management Solutions, Inc. (S.D. Ala. April 2014). Note, however, that the outcome may have been different if the claim had been for
religious discrimination especially in light of the EEOC’s recently issued guidance on religious garb and grooming.
“Rastafarian dreadlocks” are expressly listed as a grooming practice that an employer may have to accommodate.
7. The Skinny on Confidentiality Policies – HR professionals and lawyers alike are accustomed to protecting employers’
interests by drafting and implementing confidentiality policies and agreements that are written very broadly, to try to
avoid the error of omission. We don’t want the employer left without recourse because a particular type of employee
misconduct was not prohibited in the policy or agreement. That is getting harder to do, as the NLRB continues to broaden
its interpretation of employee’s Section 7 rights under the NLRA. Briefly stated, that right is to form, join or assist labor
organizations and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or
protection. With increasing frequency, common and reasonable limits on employee misconduct are seen as being at odds
with this right to disclose, discuss, grouse over and cause a commotion when one’s terms and conditions of employment are
at issue. The latest salvo has the 5th Circuit agreeing with the NLRB in finding that a common policy statement is
unlawful. A non-union trucking company in Texas had its employees sign an employment agreement that prohibits
disclosure of confidential information including “financial information, including costs, prices” and “personnel information
and documents.” An employee was fired for disclosing customer contract prices and filed an unfair labor practice claim
with the NLRB. The administrative law judge said the rule violated Section 7 because it banned employees from
discussing their wages with third parties. The ALJ tacked on a Section 8 violation based on the discharge arising from
the unlawful rule. The NLRB affirmed the Section 7 violation, claiming the “sweeping nonexhaustive categories” in the
rule supported employees’ reasonable belief they would be fired if they discussed their wages with a third party. The
Board did not agree with the finding of a Section 8 violation since the employee was not engaged in activity that
implicates Section 7 (e.g., discussing one’s wages), as the basis of the termination of employment. The employer appealed
to the 5th Circuit, who upheld the finding of a Section 7 violation. The employer tried to argue there was no evidence it
had enforced its rule in a manner that would discourage discussion of one’s wages. The Court replied the evidence was not
needed because the rule, as written, was too broad and failed to spell out the types of “personnel information” that could
not be disclosed or put a limit on the types of “personnel information” that could not be disclosed. This implicit
prohibition on discussion of one’s wages violated the NLRA. Flex Frac Logistics LLC et al v. NLRB. Take a look at your
policies and agreements and see if you need to replace broad prohibitions with skinnied-down and specific language, to
avoid having your policy used against you.
8. Employer Schooled by Class Action – Waiter is removed from the work schedule on the day his employer receives a copy
of a wage and hour lawsuit he had filed “on behalf of himself and similarly situated . . . current and former tipped
employees.” Although the employer later argues waiter was fired for having an affair with the bookkeeper, that
relationship surfaced weeks earlier and no action was taken at that time. In addition to the FLSA lawsuit, the employee
now has a claim under the NLRA. The issue before the NLRB’s ALJ was whether he was acting alone (not a Section 7
case) or whether filing a collective action implicates Section 7 even though he was not authorized by any co-workers to
file on their behalf. A Section 7 violation was found because an individual who files a class or collective action regarding
wages “seeks to induce group action and is engaged in conduct protected by Section 7.” More importantly, the ALJ opined
that the employer believed the employee was engaged in concerted activity after reading the class action complaint and a
discharge based on that belief violates Section 7. 200 East 81st Restaurant Corp. dba Beyoglu (April 2014).
9. Resources for Military Vets and Federal Contractors – The new Veterans Employment Center, which can be found at
https://www.ebenefits.va.gov/ebenefits/jobs, is a tool to connect military vets and transitioning service members and their spouses with
public and private sector employers. In addition to job listings, the site includes a database of resumes that employers can access to
find qualified workers. Employers can also go to http://www.dol-esa.gov/errd/resources.html to locate community service providers
needed to facilitate outreach to disabled and veteran job applicants. These services are available to all employers but will be of
particular interest to those with affirmative action plan obligations.
10. Lunch Money – Under federal and state law, workers who are classified as nonexempt from the FLSA’s (and states’)
minimum wage and overtime requirements are generally paid 1.5 times their “regular rate” when they work more than 40
hours in a workweek. There are some state law variations in the number of hours worked (e.g., daily overtime) and the
multiplier used (e.g., double time), but for most employers the federal rule applies. An employer’s failure to include all
types of pay that are not expressly excluded from the “regular rate” when calculating overtime pay is a ticket to a wage
and hour lawsuit. One common boo-boo made by employers is the failure to include certain per diem payments made to
nonexempt workers when doing the math. A group of nonexempt engineers who worked remotely and received a per diem
recently prevailed on their claim that the per diem amounted to a “shadow wage” and was impermissibly excluded from
their overtime calculations. The district court granted the employer’s motion for summary judgment, but the 1st Circuit
Court of Appeals reversed the grant of MSJ and granted part of the employees’ MSJ on the issue of improper overtime
calculations. The Court noted that the per diem was based on and varied by the number of hours worked and the
employer incorrectly reduced the per diem rates by the hours worked. They could’ve avoided that outcome if they had
done reductions based on days worked and not hours worked. Newman v. Advanced Technology Innovation Corp. (1st Cir.
April 2014). This case is a great read for anyone offering per diems to nonexempt workers, at
http://media.ca1.uscourts.gov/pdf.opinions/13-1132P-01A.pdf.
11. Stated Differently – Here are some hot topics for you multi-state employers:
1. California – The CA Department of Labor Standards Enforcement launched a new website that instructs employees on how to file
wage and hour claims and provides the necessary form which must be mailed in, to commence a proceeding. The forms and guidance
are posted in English, Spanish, Chinese, Korean, Vietnamese, Tagalong and Punjabi.
2. Massachusetts – A public sector employee complained that the romance between her boss and a co-worker made the workplace
uncomfortable. The employee was transferred to another location at the same rate of pay. She sued for retaliation under the
state’s anti-discrimination law, and won $750K in damages. The employer tried, unsuccessfully, to argue that there was no “adverse
employment action” because the transfer was not a demotion. That did not work because the court noted that she had a new start
time, a shorter lunch break, she had to take a course in skills not needed for her job and the new job required skills she did not
possess. Kelley v. Commonwealth (Mass. Sup. Ct. April 2014).
3. Minnesota – The state has teed up a series of increases in the minimum wage with varying amounts tied to the size of the employer,
the age of the employee and for hotel or restaurant workers under an Exchange Visitor non-immigrant visa for summer work who
receive a lodging or food benefit. The first wave of increases take effect August 1, 2014. For a chart of the varying rates and a
link to the legislation, go to http://www.ncsl.org/research/labor-and-employment/state-minimum-wage-chart.aspx. This chart has
minimum wage info for other states, too.
4. Missouri – Employee who refused to sign a noncompete agreement was eligible for unemployment compensation even though he
resigned in anticipation of being fired due the refusal. Darr v. Roberts Marketing Group LLC (MO Ct. App. April 2014).
5. New Jersey (Newark) – Effective May 29, 2014, private employers conducting business in Newark with ten or more employees must
provide employees with 40 hours of paid sick leave per year. Employers with less than ten employees must provide 24 hours of paid
sick leave to employees, per year. Child care workers and home health care workers must be provided with 40 hours of paid sick
leave per year, regardless of the number of employees.
6. Oregon – The state has released a combo form that allows employers to seek information verifying the need for family and medical
leave under both the federal (FMLA) and state law. The form is posted at
http://www.oregon.gov/boli/TA/docs/OFLA_SHC_Cert_template.pdf.
7. Virginia – Effective July 1, 2014, employers with more than two employees who fail to provide workers’ compensation insurance face
a fine of up to $250 per day, with a max penalty of $50K plus collection costs. The law broadly defines “employee” to include every
person in the service of another under any contract of hire, written or implied, lawfully or unlawfully employed and includes
corporate officers, minors, aliens, working family members, apprentices, temps, and seasonal workers. Even those classified as
independent contractors may be “employees” for purposes of this statute.
12. Last Call – Pencil in May 15 and 16 for the University of Texas School of Law’s 21st Annual Labor and Employment Law Conference in
Austin, TX. The agenda and registration info is now posted at https://utcle.org/conferences/EL14. Libby Sartain, former CHRO at
Southwest Airlines and Yahoo!, has accepted my invitation to be our luncheon keynote on Friday, May 16 and I will co-present with Bill
Munck on a combo labor and employment/intellectual property topic, right after lunch. Hope to see you there! I’m also looking forward
to speaking at the TAB Employment Law Symposium in San Antonio (July 17 & 18), the North Texas Compensation Association meeting
(August 21) and the North Texas SHRM conference in Denton (September 5).
13. For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-
State), follow me on Twitter. I’m at @amross.
Until next time,
Audrey E. Mross
Labor & Employment Attorney
Munck Wilson Mandala LLP
600 Banner Place
12770 Coit Road
Dallas, TX 75251
972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)
www.munckwilson.com
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