HR Blog

MeToo, avoiding women, and the modified Mike Pence Rule

December 7th, 2018 by Robin Shea at Constangy

One way to for men to avoid a sexual harassment claim is to avoid women. Not coincidently, that is also a way to run right into a sex discrimination claim.

So is the so-called two-step "Mike Pence Rule" (the Vice President reportedly (1) doesn't have dinners alone with women, and (2) doesn't attend parties unless his wife comes with him) a way or no way?

Robin Shea tweaks the Mike Pence Rule while debunking some "avoid" myths. more

Carnac the Magnificent says – Politicussin

December 5th, 2018 by Aaron Warshaw at Ogletree Deakins

What happens when political discussions in the workplace have not been addressed before the discussions get political.

Political discussions at work are a minefield at any time. Add one part holiday party, two parts booze and maybe an off-site location, mix thoroughly and you may have yourself a politicussin'.

Aaron Warshaw provides 6 FAQs and their answers so nothing progresses past politiscussions.

  1. common concerns
  2. First Amendment protections
  3. political discussions gone bad
  4. name-calling based on race or national origin
  5. limiting or monitoring social media accounts
  6. policies limiting political discussions more

Non-competes for non-skilled – non-productive, non-legal, non-enforceable?

December 3rd, 2018 by Evan Gibbs at Troutman Sanders

Browns helmet

Non-competes, specifically for low-wage workers:

  • seem to invite the attention of attorneys generals
  • are becoming the target of more and more legislation
  • are difficult to write so they do more than cost you money, either on the front end or the back
  • is currently being considered as a possible name change by both the Cleveland Browns and the Cincinnati Bengals as they look to rebrand and embrace the futility. 

Evan Gibbs lays out the risks of using non-compete agreements with unspecialized workers en masse, and maybe the risk of pairing the name "Non-competes" with orange and brown or orange and black (actually, orange and brown is a little bit sad, right?). more

Discrimination CHARGE! – Step 3 Cause or no cause, because you gotta do something

November 28th, 2018 by Kristin Gray at FordHarrison

Charge 3

So you have not CHARGED forward spewing and waving, but instead have taken a deep breath, straightened your spine, not panicked, asked the right questions (if not, please see Step 1 Don't panic, ask questions) then went Kim Possible and asked more questions (if not again, please see Step 2 Go Kim Possible for the investigation phase).

Well done. Now time to find if the EEOC for cause or no cause because that is what they do. Regardless, which is kind of unfair to the EEOC cause they are just doing their job, you aren't finished:

  • A no cause finding! So that's it?
  • A cause finding! Now what?

If you are a skip-to-the-last-page reader, it really is worth going back and picking up the first two steps.

Step 1 Don't panic, ask questions

Step 2 Go Kim Possible for the investigation phase more

Discrimination CHARGE! – Step 2 Go Kim Possible for the investigation phase

November 28th, 2018 by Kristin Gray at FordHarrison

Charge 2

So you have not CHARGED forward spewing and waving, but instead have taken a deep breath, straightened your spine, not panicked and asked the right questions (if not, please see Step 1 Don't panic, ask questions). Well done. Now time to go all Kim Possible for the investigation phase by answering more questions:

  • So the parties did not resolve the charge at mediation. Now what?
  • What are the best practices for responding to the charge?
  • What if the EEOC requests additional information?

See Step 1 if you skipped it above and then to Step 3.

Step 1 Don't panic, ask questions

Step 3 Cause or no cause, because you gotta do something more

Discrimination CHARGE! – Step 1 Don't panic, ask questions

November 28th, 2018 by Kristin Gray at FordHarrison


When you receive a charge of discrimination, take a deep breath, straighten that spine and DO NOT respond by CHARGING! forward cursing and waving your arms while proclaiming your innocence.

Don't panic. You and 84,254 (2017 numbers) other employers have or will share the same sense of shock, misery and a slight stomach drop this year. Kristin Gray will calmly walk you through the three steps you need to take. This first step is to find the answers to some important questions:  

  • Who is the EEOC?
  • Is my business covered?
  • Is the charge timely?
  • How should I respond to a request to mediate?

And then on to Steps 2 and 3.

Step 2 Go Kim Possible for the investigation phase

Step 3 Cause or no cause, because you gotta do something more

Depression – what can an employer do?

November 21st, 2018 by hrsimple

Depression is an illness. Depression can be treated. Depression should not be ignored.

And the holidays can carry lots of triggers: sentimental memories, loneliness, less sunlight, changes in diet/routine, alcohol at parties, end-of-year timelines at work, unrealistic expectations.

What can you, as an employer, do?

Read "What to Say (and Not Say) When an Employee Is Depressed" from Suzanne Lucas, aka Evil HR Lady, where she provides some answers, including:

  • What do you say?
  • What are things you should not say?
  • What can you do to support an employee with depression?
  • How can you accommodate employees with depression? more

Employers beware - what you say can and will be used against you

November 20th, 2018 by Darryl McCallum at Shawe Rosenthal

The FMLA leave has two very bright-line disqualifications, right?

  1. Your employee has worked for less than one year.
  2. Your employee has not worked a total of 1,250 hours.

Check both of those boxes and FMLA leave is off the table. Period. End of discussion.

Except not.

Darryl McCallum explains what went wrong (think assurances), how to avoid the wrong (think communicate and document) and how it may have been worse (think ADA, then shudder). more

Holiday stew – ingredients for a happy and non-litigious holiday

November 19th, 2018 by hrsimple

Oyster stew recipe

Holiday stew – we all have our own recipe, but the base is almost always the same: booze, mistletoe and a generous pinch of unapproved time off. And be sure you don't have enough time to prepare or clean up.

Join Gary Wheeler and Lori Mans for an hour as they provide the ingredients and know-how to help you salvage your holiday stew, including 1/2 half dry cup Secret Santa, 2 - 3 jiggers holiday party(s) - adjust accordingly, 1 medium ugly sweater, 14 oz box decorations (workplace or workspace, depending on your preference), enough year-end bonus calculation to make your eyes water

Register / more info.

My holiday stew was oyster stew that my Mom made for Christmas Eve. Never did learn why. more

MO - The weed du jour - marijuana médicale

November 8th, 2018 by Lauren Sobaski at Fisher Phillips

Lauren Sobaski provides seven next-steps which boil down to revise, DOT?, review, train, accommodate

  1. Revise employee handbooks and drug-testing policies
  2. Determine applicable DOT regulations
  3. Review any federal government contracts
  4. Train managers to identify marijuana impairment
  5. Train managers for conversations with employees regarding medical marijuana
  6. Carefully consider medical marijuana-related accommodation requests. more

Biometrics in the workplace - not a measure of bios accumulated by an employee

November 7th, 2018 by Karen Glickstein at Polsinelli

Eggs in your forehead 3

Biometrics in the workplace because it is scary for employers; it is scary for employees, it provides an additional level of security, it means taking steps to make sure you don't get sued, it requires implanting "a-device-that-you-won't-even-notice" in the forehead of each employee.

Karen Glickstein provides a list of seven YDGs (you-do-gigs) (pronounced "ya dig?" or the alternative "why dogs?" (to which I respond, "why not dogs?")) before you biometric up your workforce. more

Thanks-giving isn't just about turkeys - include the good employees too

November 6th, 2018 by Bobbi Britton Tucker at Cozen O'Connor

The turkey at Thanksgiving is kind of like that one person at work that you can't seem to get through to - you spend way too much time focused on both. But there is more to Thanksgiving than a bird (football, stretch pants, leftovers) that was almost our national symbol, just as there are people at work that you can get through to and will respond.

Bobbi Britton Tucker helps with the Thanks-giving in the workplace; you're on your own with the stretch pants. more

The best "stay" to help you retain employees

November 5th, 2018 by Crystal Enekwa at Fisher Phillips

The labor market is tight, you don't have the time to hire anyone let alone train them, and you like your team as it is. So how do you get them to stay?

  1. Beg: live performance by Jackson Brown signing "Stay" or recording of the Drifters signing "Please stay"
  2. Bribe: offer a stay-cation in their office (this would probably require some sort of supplement, like a Butterfinger)
  3. Command: simply continue to repeat the command "Stay!" and then give them a piece of hot dog or some peanut butter
  4. Ask: what makes them stay.

Crystal Enekwa saves you the time and effort and tells you why #4. Ask is the correct answer, including:

  • why you ask
  • who to ask
  • when to ask
  • who should ask
  • what to do after asking more

Overtime, daylight savings time and circadian rhythyms

November 2nd, 2018 by Maria Greco Danaher and Hera S. Arsen, Ph.D. at Ogletree Deakins

Daylight savings time is no excuse for not paying overtime. 

Maria Greco Danaher and Hera S. Arsen, Ph.D. look at four wage/hour issues that the extra hour of sleep may create.

  1. double pay for 1:00am to 2:00am?
  2. employer's overtime obligations
  3. effects on regular rate of pay
  4. plan ahead for losing an hour of sleep in March

Daylight savings time is also:

  • a song by the Circadian Rhythms (false, but it should be)
  • a method of birth control practiced by crickets and/or locusts (could be, prove that it isn't)
  • opposed by both the Barbeque Industry of America and the Amateur Softball Association (makes sense)
  • illegal in Arizona (not illegal, just ignored) more

Controlling the political speech of buttons*

November 1st, 2018 by Danielle Krauthamer and Setareh Ebrahimian at Fisher Phillips

Buttons the clown

Can you justify a button ban? Are you sure?

Does it make a difference if the employees wearing the buttons are union or non-union employees? Hmmm, does it?

How about the three limited circumstances under which employers may place limits and prohibitions on the clothing choices of their employees while at work? Yes, there are three!

Well, Danielle Krauthamer and Setareh Ebrahimian do know the three limited circumstances and if unions make a difference and how to go about justifying a button ban.

And they know about lots of other stuff too, like pawternity benefits for pets.

* For more information on "Controlling the political speech of Buttons the Clown", there isn't any, I looked, so just enjoy this clip of Jimmy Stewart as Buttons the Clown in the Greatest Show on Earth. more

HR Articles

MeToo, avoiding women, and the modified Mike Pence Rule
Carnac the Magnificent says – Politicussin
Non-competes for non-skilled – non-productive, non-legal, non-enforceable?
Discrimination CHARGE! – Step 3 Cause or no cause, because you gotta do something
Discrimination CHARGE! – Step 2 Go Kim Possible for the investigation phase
Discrimination CHARGE! – Step 1 Don't panic, ask questions
Depression – what can an employer do?
Employers beware - what you say can and will be used against you
Holiday stew – ingredients for a happy and non-litigious holiday
MO - The weed du jour - marijuana médicale
Biometrics in the workplace - not a measure of bios accumulated by an employee
Thanks-giving isn't just about turkeys - include the good employees too
The best "stay" to help you retain employees
Overtime, daylight savings time and circadian rhythyms
Controlling the political speech of buttons*
Cursing, surfing, weapons, gadgets – illegal, inappropriate or OK?
How to Ghostbuster a new hire or applicant
Election leave – employer's civic duty, migraine, or just wishful thinking (election, leave!)
Costumes, booze and the Great Pumpkin – beware the office Halloween party
Disability – Dr. or employee approved?
401(k) plan + payroll provider = 401k good things
Disability/pregnancy practices – what not to practice
Bad hire! Bad, bad hire!
TN – A drug-free workplace program is good
Open enrollment – personalizing perks pays off
Unpaid intern – depends on who benefits
The #1 office perk is . . . ?
FMLA leave before being eligible for FMLA leave
IL – Required expense reimbursement for your employees, not Bill Self
Help hiring holiday help here
Are the new DOL opinion letters like noses?
Public disclosure of confidential information is easier than you think
Bad mix – accommodation request and firing
If religious accommodation and a flu shot both equal angst, is that the transitive or substitution property?
Workplace shootings – 20 can-dos to prevent them
No call/no show shows. No what about it.
List 10 Up: Top tips for starting a workplace incident interview
Mr. Freeze unveils National Security Freeze tagline: "They can't steal your identity if it's frozen"
If it's called a dress code, can I wear pants?
I've changed my name – to Optimus Prime
TN: Conceal and carry means post to prohibit or permit
I'll take "ADA in 5s?" please Alex
Swearing at work – 7 rules
Is that red light flashing?
Four-legged office mates and the pawternity policies they benefit
Notice: notices and forms for FMLA that were already expired now updated virtually unchanged
Don't feel ripped off when you get ripped off – get even
School-related parental leave does not mean you forge a note from your kid
NY: Draft model sexual harassment policy/training released
Discipline - Demote - Depart or Communicate - Counsel - Channel
ICE audits II – FAQs to make you wiser
Round up stew: sick leave, harassment, non-compete, etc.
Identifying trade secrets does not mean figuring out how to barter better
ICE audits have nothing to do with freezer police
Being at work full time is not an essential function of a job?
List 10 up: Positive employee relations training: reap the benefits of engagement
Employment agreements – what to do before you do
Background checks of the future are continuous
Treating service animal requests (always treat the animal)
Prepare for saying "No" – you need to decide how to refuse service
List 10 up: What's the deal with employee handbook rules?
I cannot tell a lie . . . you're fired for cutting down the cherry tree
Milk Stork delivers for working mom's and their baby
Job tasks and essential functions under the ADA
Who are you? Why are you here? Personality testing?
No, you can't sleep on the job
Technology driving the hiring process
Should you give your employees a little Slack – or do they have enough already?
"We need to talk" isn't any easier to say than to hear
Bet employers must make: call and raise your minimum wage
Zero tolerance for "zero tolerance" policies
Ralph Waldo Emerson as a productivity consultant
Is the employee "disabled" under the ADA?
The six step DOL audit polka
PTO on the house!
New rules for work rules
Dr. Strangelabor or: How I Learned to Stop Worrying and Love the Millennial
Did Bartleby the scrivener write his own job description?
"Treating" disgruntled or bad behaving employees
Hiring under the age of 18
DO NOT LICK THE BRAIN! and other obvious stuff
Helping your employees save for emergencies
Right to bare arms in the workplace
#MeToo quiz
Under standing desks
How to approach an employee showing signs of cognitive decline
Dress codes should not be encoded
Foul language *
Rorschach, Horshack and Abednego
Don't ask a woman the gender of her child, especially. . .
Guidelines for a valid no-solicitation/no-distribution policy
All aboard the Love Train for long-term onboarding!
Gender and workplace bathrooms
No FMLA for pet's death
Personal hygiene in the workplace
Yes Virginia, there is a St. Patrick's Day in Ireland
Master the modern method for managing March Madness
Drug testing in The Office
Background checks
"Thank you" and "I'm sorry" – meaningful, simple and impactful
Michael Corleone HR tip for the day
S'not flu or it is, doesn't matter
Be prepared for ICE raids
Looking for employees: an untapped source of talent
Calling Dr. Love(less)
Non-exempt employees – what counts as wages?
HR is not a happy accident
Do new hires have to be a culture club fit?
Remote workers and telecommuting
When former employees ask for references
Model written lock out/tag out program
Wrong table cat
They might be giants . . . transforming healthcare?
Conducting internal I-9 audits
The Nebraska Chamber has issued a W-2 challenge to state taxpayers
The impact of super bowl(ing)
12 steps to handling violence in the workplace
Workplace retaliation: don't give in to the Dark Side
Would you really want to work with a bunch of yous?
What is the ADA?
Monty Python should not write your job descriptions
FMLA definitions
Unemployed or wear a bra – are those the only choices?
What "government shutdown" means for employers
An intern by any other name
FMLA - "leave" as in "leave the employee alone"
 “M,” “F,” Or “X”? Nonbinary Gender Designations in the Workplace
Sexual harassment – can't find it – what now?
Probationary periods
Employee contracts
How to treat fringe benefits for employees
Attendance policies
Different repeal
Temporary and leased employees
Birthdays in the workplace
Needy employees
Holiday parties - acknowledge, avoid, assume (nothing)
Dress codes: who, what, wear
Punch clock
Nepotism: favoring relatives and friends in the workplace
Year-end performance reviews
Hiring interviews
The Form I-9 has changed… Again!
Service dogs at work
Bring your own gun
Social media
Year-end or holiday incentives
Arizona sick day policy
Paternity leave
HRsimple spotlight - Fiona Ong
Permissible post-accident drug testing
Paid family leave: a growing trend
Politics in the workplace: how to remain legally compliant during election season
Termination Series: Communicating the reason for discharge
It’s only a matter of overtime
Interview with attorneys at Kastner Westman & Wilkins
Valentine's Day heartaches around the office
Safety and health tips
Wearable technology
Favorite HR sites
Back to school time is here!
Vacation policies and time off
Interview with author J. Hagood Tighe
Non-compete agreements
Workplace romance
Bullying in the workplace
Employment references
Telecommuting or remote (control) workers
Social media and employment
Performance evaluations
Interview with attorneys at Wilson Worley PC
Interview with attorneys at Knudsen Law Firm
Interview with Kathy Speaker MacNett
Firing, a job to do right the first time
Job advertisement do’s and don’ts
Employee handbooks – getting a handle on your policies
Technology in the workplace
Interview questions: do's and don'ts
Employee personnel files