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 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.

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.  

May 27, 2019

Did you know that even if your company has a clearly stated and equally applied call-in procedure spelled out in your handbook, that you may need to deviate from that in order to stay in compliance with the FMLA?  In the event of an employee’s need for unforeseeable leave, such as a car accident or heart attack, if the employee is unable to comply with your requirement that they, for example, call in 2 hours before their regularly scheduled shift, you will have to make concessions for the employee’s failure to comply.  Further, you should allow others to call in on your employee’s behalf.  One employer found this out the hard way.  The employee was in such a depressed state that she was unable to speak at all, much less call-in to report her own absence.  Her family member called in on her behalf, but the employer failed to accept it as a valid call-in and terminated the employee after she failed to show up for several days.  Not unsurprisingly, this employer ended up getting sued by the employee.  Contact our attorneys at myHRcounsel for help wading through the ever-complex web of FMLA laws and regulations!

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. 

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