SHRM’s Sexual Harassment Pop-Quiz

For those of you who have employees and customers (yes, that means all of you), regardless of whether you have a separate HR department or if you’re wearing all of those hats as owner, the Society for Human Resource Management (“SHRM”) should be something you belong to. And, no, I get nothing for plugging SHRM here. They’re just a really great resource.

Take the SHRM pop quiz on sexual harassment by clicking here.

And then think about joining SHRM for a couple hundred bucks. It’s an invaluable investment in your business.


The Spam Filter Dog Ate Your E-Mail Notice

Just as pleading that the dog ate your homework, you won’t get far with a judge by pleading that you never received an important legal notice because it must have gone to the spam folder.

In Emerald Coast Utilities v. Bear Marcus Pointe, the utility ended up having to pay BMP’s legal fees not because the weight of the merits so tipped in favor of that outcome. Nope. Rather, the utility’s law firm had a poorly designed email spam system, and they simply never saw the notice for the hearing where the lawyers could have probably made a convincing argument against those fees.

As one commentator points out, “an inability to manage an office e-mail system to properly receive notices of filing does not qualify as excusable neglect.”

While this was about lawyers and law firms, don’t think this excuses normal people like you and your company. Make sure to have email accounts that are general purpose (like “[email protected]…”) and make sure those get monitored regularly for notices from the various local, county, state and federal agencies that you are regulated by. Don’t let the homework-eating dog bite you in the … you know.

Packing a Punch(tuation)

You’ve probably seen clever musings about the need for commas. “Let’s eat, Grandma!” versus “let’s eat Grandma” goes from joyful to dreadful, all for want of a lowly comma.

In O’Connor v. Oakhurst Dairy, the lowly comma brought down a giant. Maine’s overtime statute says that the employer doesn’t have to pay overtime for people whose jobs involve “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) agricultural produce; (2) meat and fish products; and (3) perishable foods” (emphasis added). In comes Mr. O’Connor, whose job involves driving a truck, i.e. distribution. When he didn’t get paid overtime, he sued. His legal argument, in so many words, was “I don’t do packing for shipment, nor do I do packing for distribution. I just do the distribution without doing any packing at all.” And the Court agreed.

How can your company avoid being brought low by punctuation? By having a good lawyer who can help make sure your company policies actually say what you think you mean them to say. And by making sure your company is reading the law as it should be read.


Remember those updates to the overtime pay threshold that we were all wringing our hands about? (It’s back here if you’d like to remember what you were supposed to remember). A few things have happened since then. One, a Texas judge issued a national injunction barring blocking the US Dept of Labor’s overtime rules from going in to effect. And two, Donald Trump will be president starting next week.  Even if the injunction ends up being lifted at some point? The pundits are betting dollars to donuts that a Trump US-DOL will rescind those rules.

Don’t Share a Toothbrush… or Your Login Credentials

Ew, ick, right? Sharing a toothbrush…

Sharing login credentials should generate the same kind of “ew ick” response if you want to make sure you don’t end up in federal prison for violation of the  things like the Computer Fraud and Abuse Act (CFAA) or the Economic Espionage Act (EEA).

If your company subscribes to a service where each authorized user has his or her own unique login and password, sharing a login is often considered stealing. Yep, stealing. At least when viewed from the eyes of that subscription service provider.

I’m guessing this guy never thought he looked good in orange to begin with.

Post “Independents” Day housekeeping

Last week was the Independence Day holiday.  We’re talking independents here.

As a small business, there is a temptation to want to call all of your workers “independent contractors” to avoid the hassle of the various payroll taxes and reporting that comes with having “employees” versus 1099 independent contractors.

However, both the state and (especially) the federal governments are cracking down on what has come to be known as “independent contractor misclassification.” The government cares because they’re losing out on taxes paid. Plus, if the worker gets sick or hurt, chances are pretty good that the worker will rely on Medicaid or the Social Security Disability program, rather than being covered by private medical insurance or worker’s compensation insurance. Besides the government that is there to help, plaintiff class action lawyers are trolling, too, and wage and hours issues are easy chum for them.

The IRS has a three-pronged program for ‘coming clean’ if you think you’ve been misclassifying workers as independents when, in all honesty, they’re probably really employees.

What is the “test” for whether a worker is an employee versus an independent contractor? You could read and interpret this, or you could call me, or you could interpret it yourself and find out you interpreted wrong, and still call me.


Those Who Can’t, Test

If your company has job postings that refer to needing to “be able to lift fifty pounds,” keep reading.

Michigan-based Gordon Foods has been cited for a second time for having illegal “must be able to lift” requirements that over-stated what kind of physical strength was needed for doing the job. And which, the EEOC and OFCCP said were thus actually proxies for simply not wanting to hire women. Here is a good summary of the ruling.

What is my take-away? That Gordon Foods probably doesn’t not want to hire women. But Gordon Foods is bad about making sure that its local hiring/recruiting managers are using the latest and greatest forms and job descriptions.

Compliance is all about effectively communicating, making sure that all of the nooks and crannies of your company know what they need to know. And providing them the tools so that they can remind themselves of what they need to know without having to magically remember it all.