HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

NLRB Rules Bergdorf Shoe Sellers Are Mismatched for Micro-Bargaining Unit

Posted in Labor Relations

In a long-awaited decision, the National Labor Relations Board (NLRB) unanimously held that women’s shoe sales associates from two different departments within Bergdorf Goodman’s New York store could not be combined into a single micro-bargaining unit. Specifically, in Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, 361 N.L.R.B. No. 11 (July 28, 2014), the NLRB dismissed a union’s petition for a representation election among 35 employees in the Salon shoe department and 11 employees in the Contemporary shoe department because the employees lacked a “community of interest.” The NLRB’s decision hinged on the fact that the boundaries of the petitioned-for unit did not resemble any administrative or operational lines drawn by the employer—the employees were in different departments, had different job classifications and did not report to the same supervisors. The decision highlights some important lessons for retail employers in preventing the certification of interdepartmental micro-bargaining units. Continue Reading

Going Paperless? Legal Guidelines & Tips for a Paperless HR Department

Posted in Workplace Policies

In today’s high-tech business environment, it is commonplace for employers to digitize personnel documents. Maintaining these documents in electronic form has obvious benefits, including ease of accessibility and storage efficiency. Although electronic storage of personnel records is permissible under federal employment laws, employers must be mindful of the statutory rules relating to document retention periods and electronic storage systems to avoid legal pitfalls. If your company is considering implementing a paperless human resources department, read on for legal guidelines and tips to ensure a smooth transition. Continue Reading

Please Nominate HRLegalist for the ABA Journal’s Blawg 100!

Posted in Uncategorized

It’s that time of year again when the American Bar Association (ABA) is seeking nominations to help it decide on the top 100 legal blogs. The ABA is accepting nominations from now until August 8, 2014. Please consider nominating HRLegalist by filling out the form located here. The submission takes less than a minute to complete and we will be eternally grateful for your support! We hope you have enjoyed our posts and look forward to continuing to provide insight into the latest developments and trends in labor and employment law and best practices for employers.

Interviewing Applicants? What Employers Can’t Ask in Interviews

Posted in Hiring

If you are the interviewer, there actually is such a thing as a stupid (and perhaps unlawful) question in an interview. The key to developing appropriate interview questions that are both useful in obtaining relevant information and also legal is to train those involved in the interview process. Participants in the interview process, regardless of whether they are decisionmakers, should fully understand what information should not be solicited during telephone screens or interviews of applicants. Even the most cautious employers, however, may face litigation from a disgruntled applicant who believes that he or she was treated unfairly in the hiring process. Recognizing these potential legal pitfalls and training those involved in the interview process is the best way to avoid asking the wrong question during an interview. Continue Reading

New Jersey Court Upholds Use of Job Application to Shorten Statute of Limitations for Employment Claims

Posted in Hiring, Workplace Policies

According to a recent decision from New Jersey’s intermediate appellate court, employers in New Jersey can now reduce the statute of limitations for employment claims by adding the appropriate language to their job applications. Employment claims in New Jersey are often brought under the New Jersey Law Against Discrimination (“NJLAD”), which allows for a private cause of action for harassment, discrimination and retaliation, and permits recovery for lost wages, emotional distress damages, attorneys’ fees, and punitive damages. The NJLAD has a two-year statute of limitations and does not require employees to file with an administrative agency before proceeding to court. Therefore, in New Jersey, it is not unusual for employees to file their employment claims just before the two-year statutory deadline. By the time discovery begins in the lawsuit, key witnesses may have left the organization and memories may have faded, making it more challenging to coordinate a defense. New Jersey employers may now be able to streamline these challenges at the outset of the employment relationship by shortening the time period for filing a lawsuit via waivers in employment applications. Continue Reading

FMLA Leave Requests: Do Employees Need to Specify the Expected Duration of Leave?

Posted in Family Medical Leave Act, Workplace Policies

Under the Family Medical Leave Act (FMLA), whether an employee is required to specify the expected duration of leave on a FMLA application depends on whether the leave is categorized as foreseeable or unforeseeable leave. If the FMLA application is for foreseeable leave, the FMLA regulations require that the employee specify the expected duration of the leave on the application. To the contrary, FMLA applications for unforeseeable leave do not require employees to tell employers how much leave they need—if they are unsure of the expected duration. Instead, the FMLA regulations instruct employees to comply with the employer’s policies. For example, employers may implement policies that require updated estimates about how long leave will last. But what happens when an employee cannot provide an expected duration for the unforeseeable leave and the employer wants to replace the employee? Continue Reading

FMLA Benefits May Be Extended for Same-Sex Spouses

Posted in Family Medical Leave Act

Under current law, an eligible employee may take leave under the Family Medical Leave Act (FMLA) to care for a same-sex spouse only if they reside in a state that recognizes same-sex marriage. If the employee lives in a state that does not currently recognize same-sex marriage, however, the employee is not eligible for spousal leave under the FMLA. On June 20, 2014, the Department of Labor (DOL) proposed a new rule which would allow an eligible employee in a same-sex marriage to take FMLA leave to care for a same-sex spouse, regardless of where they live. The DOL explained that the proposed rule “will ensure that the FMLA will now be applied to all families equally, giving spouses in same-sex marriages the same ability as all spouses to fully exercise their rights and responsibilities to their family.” Read on to find out what impact this proposed rule would have on FMLA leave usage. Continue Reading

Beware! “Standard Terms” in Your Company’s Separation Agreement Might Trigger a Lawsuit: EEOC Says Common Provisions Are Unenforceable

Posted in Employment Agreements

Recently, the EEOC filed two separate actions in federal court challenging form separation agreements given to employees as part of reductions in force. The agency takes issue with provisions that impact an individual’s rights to participate in the EEOC process, including filing a Charge of Discrimination and participating in an agency investigation. While both cases are still in the early stages of litigation, the EEOC has made clear that it intends to re-energize its 1997 enforcement guidelines, which state that an employer may not interfere with an employee’s rights to participate in an EEOC proceeding. The EEOC’s Regional Attorney leading the case filed in the Northern District of Illinois, John Hendrickson, stated that: “[w]hen an employer attempts to limit that communication [with the EEOC], the employer effectively is attempting to buy employee silence about potential violations of the law. Put simply, that is a deal that employers cannot lawfully make.” Continue Reading

FLSA Refresher: DOL’s Wage and Hour Rules for Tipped Employees

Posted in Wage & Hour

Temperatures aren’t the only thing on the rise this summer. Wage and hour lawsuits brought by service industry employees are heating up—particularly in the food service and hospitality sectors—leading to significant and costly legal exposure. In response, the U.S. Department of Labor (DOL) implemented strict rules regarding tipped employees as part of its aggressive stance against wage and hour violations. Unfortunately, given the technical nature and nuances of these rules, employer compliance can be anything but simple. To keep the heat down in your kitchen this summer, read on for a brief summary of the DOL’s proper tip pooling and service charge practices. Continue Reading

Hiring an Unpaid Intern for the Summer? Five Legal Guidelines to Avoid a FLSA Violation

Posted in Wage & Hour, Workplace Policies

With summer vacation around the corner, many companies are looking to hire unpaid interns. If your company is considering an unpaid internship, be sure to carefully structure the internship to avoid running afoul of the Fair Labor Standards Act (“FLSA”). A few general principles may be gleaned from recent court decisions in which courts have addressed whether an unpaid internship violates the FLSA. Generally, an unpaid internship is considered compliant with the FLSA if it is structured such that it offers more of an educational benefit to the intern than it does a utilitarian benefit to the company. Further, as a practical matter, unpaid internships that offer school credit are generally considered compliant with the FLSA. To reduce potential liability, employers should consider the following five guidelines for unpaid internships: Continue Reading