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. 

June 10, 2019

Are you one of those companies that is still trying to enforce a non-compete agreement against lower wage workers?  If so, heed this advice.  STOP.  Many states have already either outright banned the use of non-compete agreements except in very limited circumstances (California and North Dakota), and still more prohibit employers from entering into non-compete agreements with lower wage workers.  Illinois already bans non-compete agreements for employees earning less than $13.00/hour and Maryland is set to pass their own law prohibiting non-competes for employees earning less than $15.00/hour.  If you are questioning the validity of your non-compete, contact one of our attorneys at myHRcounsel for a consultation.  

June 3, 2019

Picture it: Sicily, 1922. No wait, sorry. Wrong post! Picture it. You are the HR manager and you’ve noticed lately that one of your employees seems to be down, unusually sad, has changed their eating habits or just seems to be generally suffering from “the blues”. Are you able to approach this employee to find out what’s been going on? Probably not, as the EEOC has said that employees may keep information about their medical conditions private.  There are, however, exceptions to this rule.  Employers may ask questions about mental health if an employee asks for a reasonable accommodation, if you made a conditional offer of employment and ask all applicants for the same medical information, if your company is governed by an affirmative action policy and you are tracking disability status for all, or there is evidence that the employee may not be able to perform the functions of their job or may be a safety risk. Outside of these four exceptions, an employer should not inquire after an employee’s mental wellness. If you have questions about this or want help analyzing a current situation you are experiencing with an employee, contact one of our attorneys at myHRcounsel for expert guidance. 

May 20, 2019

Does your company have a practice of running background checks on applicants even before the applicant comes in for an interview?  If so, you could be violating the background check laws in a number of states.  Many states require that an employer make a conditional offer of employment (i.e., offering the applicant the job) prior to running any background checks.  This ensures that companies are giving those who may have a criminal history a chance to compete on a level playing field with other candidates.  If you find that the candidate you choose has a criminal history after making the offer of employment, you then have to decide whether that history disqualifies the candidate for that position.  myHRcounsel urges employers not to take a hard line as to what crimes are considered automatically disqualifying.  States like California require that you only deny jobs to those whose criminal histories are directly related the particular position for which the applicant is applying.  If you have questions about your practices or would like assistance drafting a compliant background check policy, please contact one of the attorneys here at myHRcounsel. 

May 6, 2019

When an employee calls in sick, does your company have a policy that requires the employee find their own replacement to cover the missed shift?  If so, you should check whether your city or state has a paid sick leave law.  If it does, dig further to see if this is something that is acceptable under that law.  Many of the paid sick leave laws across the country prohibit an employer from requiring that their employee find a replacement worker if they call in sick.  In one such lawsuit involving this issue, a Minnesota gas station was ordered to pay an employee $11,000 for violating the paid sick leave law by requiring the employee to find a replacement worker when he called in.  To avoid this same fate and get some help digging through the confusing labyrinth of paid sick leave laws, consult your experts at myHRcounsel.  

April 29, 2019

Do you employ workers in multiple jurisdictions?  If so, have you checked whether there are paid sick leave laws on the books in those jurisdictions?  If you have employees working in multiple jurisdictions that require employers provide employees with paid sick time, you must be sure that you are complying with each law’s unique differences.  Some of the differences among various paid sick leave laws include: the amount of time an employee must work in that jurisdiction in order to qualify to accrue paid sick leave, the amount of hours an employee may accrue for each hour worked, the annual usage and accrual caps, the amounts of carry-over from one year to the next, among several others.  There are a couple of ways you could handle these differences.  One option would be to create a separate policy for each jurisdiction and apply that policy to only those employees working in that jurisdiction.  This could become difficult from a recordkeeping and tracking standpoint, though, as you would have to use different tracking methods for different employees based on where they work.  You could also choose the most employee-friendly statute of the jurisdictions where employees work and apply that to all employees.  However, this option could give some employees a lot of paid sick leave that they would not ordinarily be entitled to.  Bottom line: no matter which option you choose, you must be sure that you are complying with each jurisdiction’s laws.  Contact the attorneys at myHRcounsel to discuss how you can be sure you are complying with the myriad paid sick leave laws throughout the country and get a legally compliant multi-jurisdiction paid sick leave policy. 

April 22, 2019

If regular, consistent attendance is an essential function of an employee’s role, be sure that you are clearly indicating how and why that regular attendance is so important.  This is crucially important for a number reasons, but chief among them is when an employee requests leave as a reasonable accommodation under the Americans with Disabilities Act.  If an employee requests an accommodation of intermittent, unpaid leave under the ADA, but an employer has a clearly defined job description citing regular attendance as a major part of that employee’s job, it may be possible for an employer to deny that request.  Remember, though, it is always wise to engage in the interactive process to find another accommodation that may allow the employee to continue meeting the expectations of their role.  For help deciphering the ADA, the interactive process, or possible accommodations, consult one of our knowledgeable attorneys today.

April 15, 2019

Have you ever been in a situation where you needed to change an employee’s schedule, hours, pay or benefits and you worried about whether you could (especially if the change negatively impacts the employee)?  We here at myHRcounsel have seen this question many times.  An employer will write in and say that they want to cut an employee’s pay based on a variety of factors such as business necessity or poor performance.  However, the employer worries because that employee is in a protected class and so they wonder if they can make that change.  First, as long as the employee is an at-will employee and there is no written document in place that states otherwise, employers are free to modify the terms and conditions of a worker’s employment (including hours, pay, benefits, etc.).  Second, if you want or need to make the change, be sure that the reasoning behind the change is well-documented and is non-discriminatory.  In the case of reducing an employee’s pay for poor performance, as an example, be sure that you have documented the poor performance and attempts to improve it prior to making this decision.  This way if the employee does perceive a discriminatory intent, you as the employer have documentation to prove a legitimate, non-discriminatory intent to justify the change in the worker’s pay.  If you find yourself in the unfortunate position of having to make unfavorable changes to an employee’s terms and conditions of employment and you would like some legal guidance on how to effect that change, please consult one of myHRcounsel’s attorneys today!

Member Login
Welcome, (First Name)!

Forgot? Show
Log In
Enter Member Area
My Profile Log Out