August 19, 2019


For those employers who must file an EEO-1 report, you know all too well very the limited options in choosing an employee’s gender when an employee does not self-report.  You can choose male or you can choose female.  But what is an employer to do when an employee is identifies as nonbinary since there is no option to choose other or unknown.  First, the EEOC states that an employer may use employment records or employer observations of the employee to determine whether to identify the employee as either male or female on the EEO-1 report.  However, recent guidance from the EEOC on nonbinary employees goes even further.  The EEOC  has issued a new FAQ stating that employers can include “employee counts and labor hours for nonbinary gender employees by job category and pay band and racial group in the comment box on the Certification Page.”  So while the EEOC has yet to provide us with an updated form with more gender options, there is now at least the chance to provide a more complete narrative response in the comments section. 

August 12, 2019

I have previously posted a tip of the week advising companies not to terminate pregnant employees because they are pregnant and failed to disclose the pregnancy during the employee’s interview. It should go without saying, then, that refusing to hire an applicant because she is pregnant and did not inform the employer during the employee’s interview is also frowned upon. Take a lesson from a Scottsdale, Arizona company that paid out $150,000 to settle a pregnancy discrimination lawsuit when they withdrew a job offer within one week of learning the applicant was pregnant and accused her of failing to disclose her pregnancy during the interview. Neither applicants nor employees are required to disclose a pregnancy unless they are requesting leave or some other accommodation related to the pregnancy. Further, employers should refrain from asking both applicants and employees if they are pregnant. Even if they look like the proverbial snake that swallowed the basketball, there is no reason for an employer to ask that question and it can only get you in hot water. Last, employers cannot retaliate against an applicant or employee on the basis of pregnancy as that is considered a form of sex discrimination in violation of Title VII and many states’ laws. In addition to the fine, this company was required to formally apologize to the applicant, review and revise its equal employment opportunity policies, modify their leave of absence policies and conduct supervisor training. If you are an employer wondering about your own policies and procedures, or have questions about supervisor training, contact one of our attorneys here at myHRcounsel for guidance.

August 5, 2019

Did you know that there are wage and hour laws regarding time an employee spends donning and doffing?  Yes, I know.  It does sound like a slapstick version of Starsky and Hutch, but it is a real thing, albeit less fun.  Several states require that employers consider time an employee spends changing into and out of a uniform or washing up before or after work to be compensable.  This means that if you work in an environment where an employee comes to work and must spend a considerable amount of time getting suited up to begin work, for example by putting on personal protective equipment or gear, the employee must be paid for that time.  Likewise, if throughout the course of the employee’s shift, the employee must take time to carefully wash up before they can head home, or remove the gear they put on in the morning, the employee must be paid for that time.  California, New York, and Montana are just a few examples of states that require companies pay employees for time spent donning and doffing.  For more information about how to comply with your state’s wage and hour laws, contact one of the attorneys at myHRcounsel for further assistance.

July 29, 2019

If you are an employer with 100 or more employees or a federal contractor with at least 50 employees, then you probably already know about your requirements to file an annual EEO-1 form with the EEOC. After much legal wrangling, there is now a new section of the EEO-1 that employers MUST be aware of: Component 2. Component 2 is the newest requirement of the EEO-1 form that requires employers report pay-data based on job category, race and sex by September 30, 2019. This form has over 3,000 possible data fields which can make completion of the form exceedingly complicated and wrought with the opportunity for errors. Adding to this, employers are also required to complete Component 2/Pay-Data reporting for both 2017 and 2018. If you have questions about Component 2 and its specific requirements, please contact one of our attorneys at myHRcounsel for assistance.

July 22, 2019

It’s high time we talked about recent developments relating to marijuana and employees. As laws legalizing medical and recreational marijuana spread across the country, this often leads employers to wonder how and if they can police it. New Jersey recently joined Arizona, Arkansas, Connecticut, Delaware, Illinois, Main, Massachusetts, Minnesota, Nevada, New York, Oklahoma and Rhode Island in providing employment protections to applicants and employees who use medical marijuana. Many of these states’ laws require that an employer consider whether lawful use of marijuana off an employer’s premises, during non-work hours might be a reasonable accommodation for an applicant or an employee suffering a disability for which medical marijuana has been prescribed. What this means in practical application is, if you have an applicant or employee who tests positive for marijuana, but that individual is a lawful medical marijuana user, you may have to think twice before refusing to hire or terminating that applicant or employee solely on the basis of a failed drug test. These laws can become very complicated when considering state differences and the overlay of federal law. To get specific answers regarding the marijuana laws in the states in which you operate, contact one of our attorneys at myHRcounsel!

If you are interested in more information, join us for the next episode in our Third Tuesday Webinar Series. Join us on August 20th for:

"Which States are Puff, Puff Passing Marijuana-Related Laws and How Can Our Company Stay Compliant?"

To register, click here...

July 15, 2019

In addition to utilizing the attorneys at myHRcounsel and reading our tips and blogs, we always like to offer additional ideas for resources HR professional may find useful. After a long hiatus, the Department of Labor has started issuing opinion letters again. These letters, found here, can be a great tool for helping make decisions regarding tough wage and hour issues. For example, one of the recent opinion letters provided some clarification about when a paralegal may be considered an exempt employee, as typically paralegals would be a non-exempt employee entitled to minimum wage and overtime pay. If you are already a myHRcounsel client, we highly recommend you direct these questions to our attorneys as many of the opinion letters are narrowly interpreted based on the specific facts presented. However, if you have yet to sign up for our services, these opinion letters can be another arrow in your quiver to tackling tough HR and employment law issues.

July 8, 2019

While there is a relative lull in HR-related due dates this summer, why not consider taking on a project?  One that our attorneys highly recommend and one that strikes fear in the hearts of many, is getting your records retention policy established and then pulling a major “Marie Kondo” act on those old personnel records.  If you are one of those companies that has dusty I-9 forms and applications from the 1980s still floating around in some metal file cabinet somewhere, then this is a must.  Holding onto these records not only takes up precious cabinet space, but if a government agency (perhaps the Department of Labor or ICE) comes knocking on your door demanding to see records, why give them more years of records to snoop through?  Most employee records should be retained for three years after termination of employment.  However, some records should be kept longer.  For example, USERRA Leave Reports should be kept permanently, certain pension forms should be kept for 50 years and records relating to payroll should be maintained for a period of 4 years.  If you need help drafting a record retention policy or would like to know how long to keep certain records or whether a certain record sparks joy, contact one of our attorneys at myHRcounsel today. 

July 1, 2019

Do you provide your new employees with a written offer letter that memorializes the employee’s position, terms and conditions of employment and benefits such as vacation or PTO? If this is not part of your current practice, we highly recommend adopting the use of an offer letter for your new hires. Not only will this letter prevent issues in the future if there is some miscommunication about pay, exempt/non-exempt status, and role, some states require that you provide this notice to new employees. For example, Minnesota recently enacted the Minnesota Wage Theft Law that places numerous new burdens on companies to provide their employees with a written notice that includes the employee’s status as exempt or non-exempt, number of days in the pay period, the new employee’s first payday date, the employee’s rate of pay, etc. If you are using an offer letter that you would like us to review, or if you would like help drafting one from scratch, consult with one of our attorneys at myHRcounsel for assistance. Also, if you are a Minnesota company and would like to learn more about this new law, join us on August 6th at 11:00 a.m. Central time for a one-hour webinar to learn about what the law is and how to get and stay compliant. Register here:

June 25, 2019

Have you ever had an employee turn in his or her timecard showing a few hours of unauthorized overtime worked? This is a very common issue for payroll to encounter. You have a policy in your handbook that requires manager authorization before working any overtime hours, but an employee works the hours without preapproval anyway and now wants to get paid for them. In this situation, as frustrating as it might be, you do have to pay that employee for the overtime that he or she worked. Then, using your policy that requires pre-authorization of overtime, you can discipline that employee for violation of the policy. In the end, this is a disciplinary issue and not a payroll one.

June 17, 2019

Does your company ever check social media or run Google searches on candidates? Did you know that your company can run into discrimination issues if you search social media and perhaps find pictures of children, Christmas celebrations, or photos where the applicant is holding an alcoholic beverage? If you run these searches make sure you do so after making a conditional offer of employment, be sure the decision-maker is not the person running the search and consider implement a social media searching policy to create consistent processes as to who is screened and what sorts of information is checked. If you need any help with this issue, contact us here at myHRcounsel and we can help you sort through the myriad legal issues at play in social media background checks!

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