White House Announces New Requirement for Pay Data to Be Included in Form EEO-1

White House

Today, the White House announced yet another executive action. For the first time, private employers will be required to include pay data on the Form EEO-1, which is required annually for all employers with more than 100 employees. Details on the announcement can be found here.

The proposed regulation should be issued next week and will have more details. Currently, employers that complete the EEO-1 are required to report the number of employees by race, sex, ethnicity, and job group. This proposal would add a new requirement for pay ranges, and the administration stated that employers would be allowed to group salaries to protect privacy.

This is the first time that private employers will be required to publicly announce pay data, so this proposal will be highly controversial. Putting aside the stated purpose of highlighting gender gaps in pay, the new requirement will also highlight executive pay as salary data for all levels of employees must be included on the EEO-1. It is easy to predict that union organizers and plaintiff lawyers will find such information useful for attacks on employers. This requirement is almost certain to be challenged in the courts, so stay tuned.


Posted in Uncategorized

Looking Forward to 2016

shutterstock_333981827A new year is upon us, and it is shaping up to be a big one in terms of political and regulatory change. As the last year of the Obama presidency, there is a lot of pressure on the administration to leave a mark – including in the area of labor law. It is also an election year, which may increase the pace of legislating in both Congress and state houses around the country. Here are five possible changes on the horizon of which every company should be aware:

  1. New Salary Threshold for Exempt Employees: We know this new rule is coming in 2016. It was announced last year; and employers collectively gasped as the minimum salary amount was proposed to be raised from $23,000 to over $50,000. No one knows what the new minimum salary will be for exempt employees, but it will likely be close to the proposed amount, and a large increase from the current status quo. If you have not already analyzed how many exempt employees would fall under this threshold, and developed a plan to either offer wage increases or convert these employees to hourly, you have a “to do” list for 2016.
  2. Changes to Overtime Duty Tests: Increasing the salary threshold for exempt employees is a big change, but many believe the administration will not stop there. Possible changes to overtime regulations include re-focusing the tests on the amount of time an employee spends on non-exempt tasks, instead of the importance of their exempt tasks. For litigation, this change is a nightmare because it makes it easier for employees to exaggerate, or outright fabricate, a description of their duties to benefit their case. Most employers only track total time at work, not how much time an employee spends on a particular task. Litigating how much time a manager spends managing, versus helping subordinates on a production line, devolves very quickly into a “he said, “she said.”
  3. Ban the Box: These laws have been sweeping the country, outlawing application questions related to an individual’s criminal record. In 2016, the trend is likely to continue with more cities and states passing such laws. It will prove harder than ever for multi-state employers to keep track of which application forms can be lawfully used in which jurisdiction, and push many to throw out the conviction question nationwide for consistency.
  4. Local Minimum Wage Increases: If you have employees in a “blue state” or city with a predominantly Democratic city council, you likely have already seen an increase in minimum wage, or will have one on the ballot next year. The federal minimum wage rate of $7.25 has not changed since 2009. As of 2015, 29 states plus the District of Columbia had minimum rates above the federal amount. Many of these states also index their minimum wage rate to inflation, which means an automatic increase periodically. The takeaway is that it will become harder than ever to keep track of all of the different minimum wage rates if you have a workforce spread out geographically.
  5. LGBT Rights: Last year was the year the Supreme Court opened the door for a constitutional right to gay marriage. That decision will be relied upon to push for additional rights in all areas of society, including the workplace. The federal government has already ruled that “spouse” under the FMLA includes same sex spouses, and most employers have made similar allowances for paid sick time and bereavement policies which reference a “spouse.” If you have not already, conduct a review of your policies and procedures to analyze whether you have any inconsistencies that could serve as the basis for a discrimination claim.



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New Year Brings New Gun Laws in Texas

Texas has long allowed licensed citizens to carry concealed handguns, but in 2016 Texas will allow “open carry” for the first time. For employers, this means dusting off the gun policies and signs on your front doors to address the changes in the law. Attached is a guide for Texas employers prepared by our firm. The highlights of the guide include the following tips:

  1. Texas law allows employers to restrict possession of firearms by employees while on duty or on company property (with exception of parking lots). This law does not affect these rights, and employers may continue to restrict weapons of all types in the workplace, whether concealed, open carry or otherwise.shutterstock_163763705
  2. If a property owner wants to restrict access to licensed gun owners, Texas law requires the property owner to post a sign advising that concealed and/or open carry is prohibited. Most business owners already have a sign prohibiting concealed carry onto the premises, but starting January 1, the sign should be updated to also include open carry (if you want to restrict both). A property owner can mix and match and is not required to prohibit both. For example, a building owner could decide to allow concealed carry, but refuse to allow open carry.
  3. Texas law also allows licensed concealed handguns at public universities starting in 2016. Private universities may opt out of the law (and most have). Open carry on a college campus is not allowed, and possession of a handgun (whether concealed or open carry) on a grade school campus (K-12) is still illegal.


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Posted in Labor & Employment, Wage and Hour

HR Trouble at Holiday Parties

It’s that time of the year when HR professionals are crossing their fingers and hoping they don’t have to terminate anyone for misconduct at the company holiday party. Fox 26 in Houston interviewed me about the suggested tips for staying out of trouble for the holiday season. That interview can be found here.

Some tips from the interview include:

  1. Alcohol and company events are a bad combination. Keep the alcohol to a minimum or delegate the responsibility to monitor drinking levels to a third party (like a restaurant or hotel); consider offering rides home or other arrangements for employees who have too much to drink.christmas party
  2. Set ground rules for any festive games, talent shows or gift exchanges. Employees should keep things tasteful, and avoid racially offensive or risqué activities.
  3. Should it be a Christmas Party or Holiday Party? There is nothing wrong with celebrating Christmas in the workplace, and every company should decide how to best address this issue with its employees, customers, etc. That said, a Christmas party should be a non-religious event and any employees who object to attendance on religious grounds should not be retaliated against in any way.


Posted in Uncategorized

Don’t Let Politics Disrupt Your Workplace

I recently wrote an article for the Houston Business Journal on this subject, which can be found here.

With the 2016 election campaign already going strong, now is a good time to review company policies in this area to ensure  political discussions in the workplace remain civil, and will not result in harassment complaints or fist fights. Some tips from the article include:

  1. Employees of private companies generally have no right to free speech in the workplace. Management has the right to limit discussions which disrupt the workplace or impact productivity.RandD
  2. Most employees have no desire to hand out literature or campaign for a candidate at work; if you have someone who wants to take such steps, consider your solicitation policy and the need for consistency – you may have to allow a union to solicit your workers if you allow solicitations for a particular candidate or cause.
  3. Be particularly vigilant in regard to political discussions in the workplace which cross over into racial or religious issues. These types of discussions can easily become heated and misconstrued as evidence of discriminatory bias, especially if undertaken by a supervisor or other official responsible for making employment decisions.
  4. There is no legal requirement that employers or management be neutral in election campaigns, but it helps for management to set an example when it comes to respectful workplace discussion. Remember – there will be a lot of unhappy people the day after the election (no matter what happens) and gloating or retaliation against a coworker is not good for morale.
  5. Lastly, do not allow employees (especially management) to question coworkers about their vote – in Texas (and most states) it is illegal to retaliate against someone based on their vote, and many employees are uncomfortable with disclosing their views.
Posted in Uncategorized

Ban the Box Gaining Momentum

shutterstock_163754744Last week, President Obama announced yet another executive order, this one removing questions about an applicant’s criminal history from applications for federal jobs. Similar laws have been passed in cities and states across the country, including New Jersey, where the President visited a federal detention center to announce the new order. Details on the announcement can be found here.

This move is the latest in a legislative effort that is clearly making some gains across the country. Nineteen states have passed ban the box legislation, and over 100 cities or counties have passed similar laws. This hodgepodge of laws is a nightmare for large employers who seek to have one uniform employment application across the country. Many have thrown in the towel and removed the question altogether to avoid the inadvertent use of an unlawful application in a jurisdiction where the question is disallowed.

One important reminder about this discussion is that these ban the box laws do not restrict an employer’s right to conduct background checks and deny employment to convicted felons. The stated purpose is to simply remove the question from the applica
tion as a screening tool, and delay the point at which the employer learns of the criminal offense (hopefully after meeting the applicant and forming a favorable impression). In my experience, however, removing the question on the application eliminates the opportunity for an applicant to “get ahead” of a background check by honestly disclosing a conviction and addressing it “head on.” Likewise, it takes away an opportunity for employers to test the honesty of an applicant to see if they will voluntarily disclose a conviction. Many employers are more apt to hire applicants with convictions if they are honest about their history, and this law will take away that opportunity.

Lastly, these laws take away a not so insignificant tool for the defense of employment litigation. Employers have long been able to raise after acquired discovery of dishonesty on the application as a defense to a wrongful termination case. In other words, if an employer discovers in litigation that an employee lied about his or her criminal history, and the history would have disqualified the employee from being hired, the damages available in the case can be reduced or cut off substantially. If the question is removed from applications, employers now have the entire burden for checking criminal background and the employee can simply remain silent without consequence (and hope the employer misses something).

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NLRB’s Position on Social Media Finally Hitting the Courts

nlrbIt is common knowledge that the National Labor Relations Board (NLRB) has taken an aggressive position on employee use of social media constituting protected concerted activity.   In the last few years, the NLRB has repeatedly found that employee speech on social media critical of the employer was protected from disciplinary action.   It can take several years for cases to make their way through an evidentiary hearing before an administrative law judge and an appeal to the NLRB in Washington D.C.   After that process has concluded, the NLRB’s decision can be appealed to the United States Court of Appeals. 

The first such case to make its way to the federal courts is now pending at the Second Circuit and oral argument was held this week.   The case is Three D, LLC v. National Labor Relations Board, Case No. 14-3284, and involves “Triple Play Sports Bar and Grille.”  The restaurant fired a bartender over a Facebook post calling her employer an “asshole.”   The posting was “Liked” by another worker which made the comment “concerted” according to the NLRB.   The employer argued that the posting was capable of being viewed by customers and constituted “disloyal” or “defamatory” speech outside the law’s protections.   The NLRB argued that the comment was not sufficiently inflammatory and that employees have the right to heated and even profane expressions of discontent about their working conditions.

This case is an important one to watch because it is a test case for the NLRB’s aggressive litigation stance on protection for employee social media posts.   It will also be one of the first appeals court rulings on the question of whether a “like” on Facebook equates to a concerted action by multiple employees.   A decision is expected late 2015 or early 2016.

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Conscientious Objectors in the Workplace

Recently, the news has been filled with employees who refuse to perform their duties based on political, moral, or religious beliefs. Kentucky clerk Kim Davis was jailed for refusing to issue marriage licenses to same sex couples following the ruling by the Supreme Court. Here in Texas, a Whataburger employee refused to serve police officers after publicized reports of a shooting. A similar incident was reported at an Arby’s restaurant in Florida. These cases raise the question – what should an employer do when an employee refuses to perform their job? Can the employee sue for wrongful termination if he or she is discharged?

First, it is worth noting that Kim Davis, the Kentucky clerk, is not an employee, she is an elected official. Elected officials generally cannot be terminated and serve at the will of the electorate. The focus of this blog posting is on employees. For example, what if your business employs a “Black Lives Matter” activist who refuses to serve a customer? What if a Christian employee refuses to serve a same sex couple visiting your business?

In both the Whataburger and Arby’s cases, the employees were terminated for refusing to serve police officers. Political expression is not protected in the private sector and employees do not have a right to engage in either free speech or activism in their jobs. Generally, employees who use their positions to make political statements with which the business disagrees can be discharged. Similarly, an employee who violates a company policy or local, state or federal law requiring service of all customers without regard to race, religion, or other classification, can be lawfully discharged.

There are two important potential exceptions. First, employees have a right to request a reasonable accommodation for religious beliefs. The employer has a duty to make a reasonable accommodation for religious objections to performing duties. What is “reasonable” depends on the circumstances, and the law does not require an employer to fundamentally transform a job or relieve an employee of performing essential duties. This issue is being litigated across the country as several non-elected officials (unlike Kim Davis who is elected) have been terminated for refusing to issue marriage licenses to same sex couples. There has also been much litigation over pharmacists refusing to issue birth control pills because of religious beliefs, and most states protect such refusals as long as another pharmacist is present and can administer the medication.

In Texas, employees are also protected from termination for refusing to perform an illegal act. For example, an employee who refuses to dump hazardous chemicals into a river, or engage in questionable accounting practices, is protected from adverse action. Given the over-legalization of society in general, and the workplace specifically, it is not hard for a creative lawyer to cast an objecting employee as refusing to engage in illegality.

The takeaway from these recent news stories is that employees making political statements generally act at their own peril and can be lawfully terminated. That said, employers should be careful and make sure that the conscientious objector is not protected , for example if the objection is based on a religious belief or a refusal to break the law. In such cases, employers should seek out legal advice.

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Virginia Shooting Raises Questions About Background Checks

site-header-logo-pngFirst, let me say that most shootings (including the recent incident in Virginia) are random acts of violence by crazy people.  It is difficult, if not impossible, to predict when an employee will snap, or whether an ex-employee is likely to return to the workplace with a vengeance.  That said, the recent Virginia case has prompted a number of questions about what steps, if any, prudent employers can take to weed out applicants with clear histories of violent or confrontational episodes in the workplace.   Here, the shooter had been discharged from WDBJ, and escorted from the building by police two years earlier, after confrontations with coworkers.  It appears as if one of the victims had, in fact, complained to Human Resources about the shooter, which had prompted him becoming a target.

Through the news coverage, we now know the shooter had been previously terminated from a Florida television station after threatening fellow employees, and had similarly blamed his problems at that location on unfounded allegations of racism.  None of this, of course, was known by WDBJ when the shooter was hired and raises the question  – what could have been done to lawfully obtain such information and could it have even been used to deny employment?  The simple answer is that federal law (and most states) prohibit an employer from relying upon past complaints or lawsuits about discrimination as an employment criteria.  EEOC charges of discrimination do not appear on background checks, and most checks do not include civil discrimination suits.   In most cases like this one, the only way to get a hint of the employee’s prior behavior is either directly from the employee in an interview or from the prior employer through a reference check.

The sad reality is that reference checks have largely become a waste of time.  Concerns over defamation lawsuits have led most companies to say nothing or, at most, they just reveal “name rank and serial number” in the form of dates of employment and positions held.  Some employers are so concerned about loose-lipped employees that they have delegated this function entirely to third party vendors.  The takeaway from this incident is that the interview process is not just about identifying qualified employees anymore.  Interviewers need to be trained to measure, on a basic level, the emotional and psychological condition of the applicant.  Lots of areas are legally off limits (like past racial complaints) but problems getting along with coworkers are fair game.  Sometimes, more can be discovered by HOW an applicant answers a question (or avoids a question) as opposed to what is actually said.   No employer is perfect and bad apples will slip through the cracks, but prudent employers will take the interview process seriously as perhaps the best and only opportunity to avoid a future incident of workplace violence.  Some practical tips in this area include:

  1. Be thorough in checking references – you never know if you will get lucky and someone will talk.  Sometimes you can pick up cues in the tone or demeanor of the past employer’s refusals to answer your questions.
  2. Hire a good background check vendor.  For example, do you know which states are being checked for criminal histories?  Are you doing a national search or just your home state?  If you are only checking states where the applicant lived, what if they lie?
  3. Train, train, train your interviewers.   Security personnel at airports are trained to spot terrorists boarding planes by just asking questions.  No one expects your hiring team to be this proficient, but throwing an untrained manager into an interview with a list of questions on a napkin is not a recipe for success.
  4. Don’t be afraid to ask tough personal questions. Know the legal boundaries but understand that the damage done by a poor hire almost always outweighs the risk of a lawsuit arising out of a misconstrued question.
  5. Consider using standardized personality assessments as part of the hiring process.   Yes, these tests must be validated as job related and can raise legal considerations.  That said, they are valuable tools and can be used lawfully with quality legal guidance.
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Posted in Discrimination, Labor & Employment

Yelp Reviewers Are Not “Employees”


In a world where the lines between employees and volunteers/interns are becoming increasingly blurred, it is nice to see at least one court easily dispense with a wage and hour lawsuit.   On August 13, 2015, a federal judge in San Francisco dismissed a complaint seeking to establish a collective action under the Fair Labor Standards Act (“FLSA”) for Yelp users who wrote online business reviews.  The suit claimed that such users are “employees” and that reviews appearing on the website constituted “work” for which they were unpaid.

The money quote from the decision is “[w]hile the statutory definition of employee is exceedingly broad … it does have its limits.  An individual who without promise or expectation of compensation, but solely for his personal purpose or pleasure, worked in activities carried on by other persons either for their pleasure or profit, is outside the sweep of the Act.”  The full decision can be found here.

The takeaway from this case is that there are (thankfully) some obvious limits to the definition of employee, even in the emerging arena of internet commerce.  With the high profile disputes over the employment status of Uber drivers and unpaid interns in the entertainment industry, the question of employment status is an important one which will not go away anytime soon.  Employers who use volunteers or contributors for online content (like Yelp) should make sure that the terms of use clearly specify that contributors are not employees, and that any contribution to the website is voluntary and solely for the contributor’s own purposes.

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Posted in Labor & Employment, Wage and Hour
About HR Headaches
HR Headaches is a blog for Human Resources professionals, business owners, and in-house counsel to get the latest news, analysis and tips in the area of labor and employment law. Every day there are new court decisions, agency interpretations, and regulations which affect the workplace, making it difficult, if not impossible, for many employers to keep current. HR Headaches is dedicated to providing information in a practical, no-nonsense manner to help employers avoid legal disputes and keep policies up to date.
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The Editor

David L. Barron is a Board Certified labor and employment attorney from the law firm of Cozen O’Connor and part of the firm’s national labor and employment practice group. David brings a practical approach to solving workplace problems and is a sought after speaker by business and industry associations, media outlets and companies looking to provide training for its managers and supervisors.