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June 29, 2012

HR Fact Friday: NLRB and Social Media

Filed under: Employment Law,General HR Buzz8:35 am

Just a few weeks ago you read about the latest guidance from the National Labor Relations Board (NLRB) on how employers can lawfully regulate employee activities on social media such as Facebook. In its guidance, the NLRB is acting to enforce the National Labor Relations Act (NLRA). Many employers make the mistake of assuming that this law only applies to a business with a unionized workplace or where a union has been proposed. Although the NLRA does apply to such businesses with such situations, it also applies to employers without unions. The most commonly applied provision in non-union settings is Section 7 of the NLRA, the provision prohibiting an employer from discriminating against employees who engage in concerted activity. This section permits employees to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Regardless of union status, employees must be free to discuss the terms and conditions of employment without fear of retaliation. In an effort to further explain the meaning of this law, the NLRB recently unveiled a website page that details the rights of employees to engaged in concerted activities. According to the NLRB, the webpage “tells the stories of more than a dozen recent cases involving protected concerted activity, which can be viewed by clicking points on a map. Among the cases: A construction crew fired after refusing to work in the rain near exposed electrical wires; a customer service representative who lost her job after discussing her wages with a coworker; an engineer at a vegetable packing plant fired after reporting safety concerns affecting other employees; a paramedic fired after posting work-related grievances on Facebook; and poultry workers fired after discussing their grievances with a newspaper reporter.” You can see the new webpage here:


June 28, 2012

Destination HR: I’m on “SHRM time”

Filed under: General HR Buzz — Tags: 2:01 pm

It’s Thursday, and for me, it’s back to the real world of everyday.  Since Sunday, I’ve been on “SHRM time,” to borrow from SHRM CEO Hank Jackson.  When I was sitting in the opening session on Sunday, it really seemed that I had so much time and that the conference would never come to an end.  The first part of the week went by so much quicker than I could have imagined.  As I shared with you on Tuesday, there is simply no better word to describe the conference than “overwhelming.”

On Tuesday morning, the general session speaker was author Jim Collins.  He’s a great storyteller, and I was riveted as he recounted the tale of Amundsen and Scott, two men who both ventured on a South Pole expedition in 1911, only to have drastically different outcomes.  Says Collins: “Greatness is not a function of circumstance.  Greatness is first and foremost a conscious choice, and discipline.”

Outside of the conference experience and some fantastic sessions, my favorite part of the trip was visiting the World of Coke, and not just because I got to meet him:

Here I am with the Coca-Cola Polar Bear

I had a beyond-great customer service experience in the store, and it was obvious to me that the individual who helped me hadn’t singled me out to provide that great service – she makes it part of every single interaction she has with a customer.

As a rookie attendee, I tried to gather every piece of information I could get my hands on prior to heading to Atlanta.  Even so, I was unprepared for the experience.  Here are a few of my observations, as I process my SHRM 2012 experience.  I hope they’ll help you if you’re considering a trip to Chicago for SHRM 2013.

  • The food situation.  I felt like an explorer, constantly on the search for a good source of food.  The Georgia World Congress Center did have some options.  As is probably standard, prices inside the GWCC (where SHRM12 was held) were akin to asking for one’s first-born.  Although the CNN Center is right across the street, someone from out of town wouldn’t necessarily know that the place had at least 10 dining choices inside.  I found out from a colleague.   Here’s my advice to next year’s attendees in Chicago: do some thorough research ahead of time and find somewhere nearby (within walking distance) to grab something quickly.
  • Vendor parties (go to them).  On the first evening, Michele and I had an opportunity to go to party put on by a vendor.  They were wonderful hosts.  More than that, we met some interesting HR pros in the process.  It was a nice icebreaker, and I’m proud to say I had a small hand in encouraging Michele to get her own Twitter handle!
  • Plan ahead, but give yourself flexibility.  Take advantage of the mobile app SHRM provides.  Scope out interesting sessions and add them to your calendar.  Try to pick two, so that you’ll have a back-up if the one you want is full.  It was tempting to ignore the advice that so many veterans gave and schedule myself for 4-5 sessions a day.  I’m glad I followed their advice and kept it to 3 a day at the most.  Otherwise, there is not enough time to allow for networking, strolling through the exhibit hall, and hanging out in the SHRM store.
  • Bring lots of money with you.  The shuttle service between the GWCC and the hotel was convenient, but if you want to do anything else, like go to dinner, you’ll need money for transportation.  The shuttle stopped running each night about 1 ½ hours after the last session ended.  I overheard a few people who said that hotel options in Chicago are further spread out than in Atlanta, so there may be many cab rides in your future.
  • Ask the concierge where the locals eat.  Our friend and colleague, Laura, got the skinny on South City Kitchen.  We had the house specialty fried chicken, a simply fantastic Georgia peach salad, and blueberry cheesecake bread pudding (yes, there was white chocolate involved) for dessert.  It was one of my favorite experiences – great food with some great people.

The Georgia peach salad at South City Kitchen

  • Go to the Tuesday night entertainment, no matter how tired you may be.  Look, you’ll be exhausted after three full days of nonstop conference activity.  I get it.  But don’t let yourself miss out on this unique opportunity.  We had Jerry Seinfeld, Las Vegas had Keith Urban.  Honestly, any other time, I might not have chosen to go see either one.  I’m glad I did, though.  It’s a good opportunity to let down your hair and relieve a little bit of that stress you might carry around along with your conference bag.

I learned so many things; I haven’t even come close to processing all of it.  I know one thing for sure: I had an unparalleled experience in Atlanta at SHRM12.  Were you in Atlanta?  What did you think?


June 26, 2012

Destination HR: Stellar Keynotes and Exploring Atlanta

Filed under: General HR Buzz — Tags: 6:30 am

Even though I write the blog primarily from my desk at my official office, I’m sure that I’ve blogged in my pajamas at least once.  What I can say with confidence is not only have I never blogged in my pajamas in Atlanta, but I have never blogged in my pajamas in Atlanta while attending the 2012 Annual SHRM Conference!  I arrived yesterday morning, and rode the MARTA train 30-40 minutes to my hotel.  Along the way, I got to know a couple of HR pros who had come from further away than I had to take part in this once annual event.


As a first-time attendee, I’m sure that my thoughts echo what so many have said before me: until I walked into the Georgia World Congress Center, I had absolutely no idea just how awestruck I would be.  At the opening general session, 13,000 others and I were privileged to hear Dr. Condoleezza Rice unquestionably exemplify the “Be…” theme of this year’s conference.  My absolute favorites of her many inspiring words: “What seems impossible seems inevitable in retrospect.”  Rice recounted her childhood growing up in Alabama before the Civil Rights legislation.

“Her parents convinced that little girl that she could still grow up to be president and eventually she became secretary of state.  So I remain optimistic about our future, and I believe that it will be led by the most generous and most compassionate nation on earth, the United States of America.”

As much as I enjoyed hearing Dr. Rice (and quite frankly, wished she would have continued long after she stopped), there was much more to come.  I was also looking forward to the grand opening of the exhibit hall.  Again, no matter how many times I’ve been told I would be overwhelmed, that word doesn’t even begin to describe the feeling when I walked in.  Of course, I ran into a couple of friendly faces:

Paul and Mike at Booth 1345

After an evening of dinner and networking with some new HR buddies, Michele and I headed back to our hotel to begin the long task of winding down.  My traveling companion got the best side of the bed, but in all fairness, he called it.

Leo (My daughter sent him along to keep me company)

On Monday, the first full day of the conference, we underestimated the time it would take to get to the GWCC, and we made it just in time for the general session, featuring author Malcolm Gladwell.  He talked about generational paradigms, and how the work of Dr. Martin Luther King exemplified hierarchical leadership.  His leadership style defined his generation, and generations to follow.  When speakers start talking about Millenials, I generally tune out.  But Gladwell’s comparison of Dr. King’s leadership with what Millenials identify with, I listened.  Millenials – as you can see from the recent Occupy movements – believe in a much more flat, networked, organization.  But Gladwell cautioned HR pros to impress upon Millenials that as effective as networked organization can be, it is impossible to succeed without a hierarchy.

After lunch, I spent some time in the Hive, SHRM’s social media hub, and got a preview of a session I planned to attend in the afternoon.  We visited the Candy Bar for a much-needed sugar rush, then added our Twitter handles to the board.

@JustSayLiv (That's me!)

We wrapped up a busy conference day with some great company, our friend Laura Conover (Conover Consulting).  While we were searching out a place to eat, Paul (VP Sales and Marketing) and Mike Dougal (Director of HR Consulting) passed the time with a friendly game of bocce ball.

Paul and Mike (I'm not sure who won, because I have no idea how to play!)

I am brimming with excitement to see what Tuesday brings at the SHRM 2012 conference.  It’s going to be another busy day, with the general session featuring author Jim Collins, final day in the exhibit hall, a time-out for a trip to World of Coke, and Jerry Seinfeld.

Good night from Atlanta!


June 25, 2012

Exemption Decision on Pharmaceutical Reps Could Affect Your Sales Force

Filed under: Compensation,Employment Law,FLSA — Tags: 9:22 pm

This week the Supreme Court ruled 5-4 on the Christopher v. SmithKline Beecham Corp which held that pharmaceutical reps are subject to the “outside sales” exemption to the overtime requirements of the Fair Labor Standards Act.  You may dismiss this as something not pertaining to you if your organization doesn’t have pharmaceutical sales reps.  But actually there are some important decisions made as part of this ruling which could apply to your sales force.

The issue for the Supreme Court was that pharmaceutical reps do not really “sell” drugs to doctors.  Based on the heavy regulation within the pharmaceutical industry, reps are not allowed to sell directly to the public or even to doctors.  Instead, they call on doctors and persuade them to make a non-binding commitment to promote their products in appropriate cases.  Thus, the plaintiff’s argument – the rep makes no “sale” but instead is a nonexempt “promoter”.

The Department of Labor took the position that drug reps were nonexempt beginning in 2009.  Their argument was that “(a)n employee does not make a ‘sale’ for purposes of the ‘outside salesman’ exemption unless he actually transfers title to the property at issue.”  The DOL’s reasoning would seem to remove a whole lot of sales persons who previously were exempt, much more narrowly defining the regulations and prior case law.

The Supreme Court’s decision reinforces the practices of the past 70 years defining “sales” is expansive and functional.   Below are some of the issues cited to support this decision:

*that the language of the FLSA included not only “direct sales” but also “consignments to sale” and exchanges;

*that, in giving examples of what might be “sales” for purposes of the exemption, Congress had used the word “includes” rather than “means,” indicating that the examples were not intended to be unduly limiting;

*that Congress had included “or other disposition” as a catch-all, which should reasonably be interpreted as accommodating industry-by-industry variations in methods of selling commodities.

For the complete opinion of the case, you may click here.


June 22, 2012

HR Fact Friday: Paycheck Fairness Act Stalls in Senate

The United States Senate recently considered S. 3220, the Paycheck Fairness Act, noted in the last update as a legislative alert. Proponents of the bill were unable to muster 60 votes to cut off debate on the bill, and thus it is not likely to become law. The bill prohibits employers from retaliating against workers who ask about pay disparities and allows employees to sue for punitive damages when there are large differences in salary levels between male and female workers.

To avoid potential situations where pay disparities could result in a lawsuit, talk to HRN and ask about Compease. Compease is a complete compensation administration solution that ensures you are not overpaying or underpaying your staff resources and that there is defensible pay equity across your entire organization. To learn more go to and register to attend a no obligation webinar demo.


June 21, 2012

Destination HR: Last-Minute Thoughts

Filed under: General HR Buzz,HRN News — Tags: 10:36 am

With less than 72 hours until my flight, I’m beyond even trying to hide my crazy excitement for my trip to Atlanta for the SHRM 2012 Annual Conference.  To get ready for my first trip to be a part of this experience, I’ve been researching and reading as much as possible, from as many sources I can find.  If you haven’t been keeping up with me, you can read more about what I’ve found in: Part 1, Part 2, Part 3, and Part 4.

Today, I pulled together some of the places I’ve found some fantastic insider tips and party information.

Dawn – @dawnHRrocks- HR Insomniac says “Love the One You’re With” – Embrace the unexpected, and roll with it.  Sounds good to me!

China – @ChinaGorman – Has some great tips for maximizing the conference experience.  If you don’t follow any other advice, remember to smile!

Jessica – @blogging4jobs – She’s got the hook-up for all the parties going down in ATL…  You can find it here.

Irene – @Irene_Hahn – I’ve heard “bring comfortable shoes” so many times I don’t think there’s any way I could forget.  Irene’s tips for making the conference count was especially good because I got some idea of the apparel I should have on above the ankle.  The best part was that it went with what I was already thinking of!

Almost every blog I’ve read up to now has suggested opening a Twitter account.  Don’t fight it – embrace it.  The #SHRM12 hashtag is a great way to follow what people are up to at the conference.  And when you sign up, follow @HRNPerformance.

One last thing to add to your list of things to see and do while in Atlanta: stop by HRN’s booth (1345) and see Paul Hendrycks, Vice President of Sales & Marketing.  Be sure to bring your business card or let us scan your conference badge to be entered in our drawing to win a free 1 year subscription!


June 19, 2012

Too Much or Not Enough: Religious Discrimination Today

Filed under: Discrimination,Employment Law6:30 am

What does a long-term care facility have in common with the world’s largest retailer?  Unfortunately for them, it’s that they both have been involved in settling charges of religious discrimination by the EEOC.  Although far below other types of discrimination in terms of charges filed – 4.2% of 2011’s total vs. 37.4% charges of retaliation – religious discrimination is still a part of modern-day business.  Although almost two thirds of religious discrimination charges brought by complainants were found to have no reasonable cause, the EEOC was still able to help collect over $12 million in 2011.

Last week, the EEOC filed a federal lawsuit charging a Tulsa retail store with religious discrimination.  Edward Wolfe applied for a position as supervisor with Voss Lighting, and went to at least two interviews with the company’s managers.  The company, based in Lincoln, Nebraska, does not make any attempt to hide its religious affiliation, as stated on its website:

“Our biblical mission is to ‘sell’ our lighting products so that we may ‘tell’ everyone we can about God’s soul-saving, life-transforming gospel message as Jesus instructed believers to do.”

The problem occurred when Wolfe was questioned by two managers about his own religious beliefs and practices.  According to the charges, he was allegedly asked to identify every church he had attended in recent years as well as the circumstances that led up to him becoming a “born-again” Christian.  He was also asked if he would have a problem coming to work early, without pay, for Bible study.  Wolfe says the manager exhibited “overt agitation and disapproval” at his responses to the religious questions.  He was subsequently not hired for the position.

Following are some best practice suggestions for avoiding religious discrimination litigation:

• Written anti-harassment and anti-discrimination policies in the policy manual and employee handbook.  The policies define types of discrimination and the discipline procedure.  Additionally, the handbook outlines ways employees can report suspected discrimination and harassment.  Employees sign acknowledgement that they have received and understand policies.

• Training on anti-harassment and anti-discrimination.  For employees, training provides overview of the company policy and reporting mechanisms.  For employees who serve as supervisors, training also outlines proper procedure to avoid discrimination and harassment and what to do if an employee reports discrimination or harassment.  Supervisors also receive training to show how to make accommodation requests an interactive process with the employee.

• When an employee makes an accommodation request to the supervisor, the supervisor should inform Human Resources of the request.  If the supervisor and employee can come to an agreement for an appropriate accommodation, the supervisor will notify Human Resources.  If the parties cannot agree, Human Resources will work alongside the employee and supervisor to mediate and arrive at a compromise.

The company has said in a written statement that the individual who was hired for the position was more qualified and Wolfe and had more experience.


EEOC: Religious Discrimination

Not Christian Enough?


June 18, 2012

Pregnant and Over 40 – Still Discrimination Issues After All These Years

It’s sometimes difficult to spice up a blog on a rather mundane topic, such as the EEOC.  However, based on recent headline stories, the topic of EEOC is anything but mundane.  Below are some interesting statistics that pertain to two laws enforced by the EEOC.

Pregnancy Discrimination Act (PDA)

I thought all employers would be fully aware that it is illegal to discriminate against women because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth, duly titled “The Pregnancy Discrimination Act”.  Apparently not.  The Washington Post recently reported that “nationwide in fiscal 2011, women filed 5,797 complaints with the EEOC alleging pregnancy discrimination at work or in hiring, a 23% increase from fiscal 2005.”

Unfortunately, it doesn’t stop there either.  After the baby is born, discrimination continues in the form of the “motherhood wage penalty” of up to 5% per child.

So what can be done?  The EEOC is stepping up their enforcement efforts, which could help raise awareness, along with increased guidance to employers as to how to comply.

Age Discrimination in Employment Act (ADEA)

The ADEA, in simple terms, prohibits employers from making employment decisions based on an employee’s age.  “Employment decisions” cover a variety of areas inlucindg compensation, terms, conditions, or privileges of employment.  The ADEA forbids age discrimination against people who are age 40 or older.

I have been reading a lot of news stories highlighting the difficulties “older” workers are having in securing a full-time job.  Even the AARP has a guide titled “Age Discrimination:  What Employers Need to Know”.  The guide seeks to inform employers that older workers are valuable resources to an organization.  In response to the statistics below, we are seeing more publications and articles referring to the benefits of “baby boomers” in the workplace.  Compare the statistics from 2001 to 2011 below:


  FY   2001 FY   2011
Receipts 17,405 23,465
Resolutions 14,672 26,080
Monetary   Benefits (Millions) $53.7 $95.2


By creating awareness of these issues regarding the PDA and ADEA, employers should step back and re-evaluate their processes.  Oftentimes, previous experiences have shaped our perceptions which have unintentionally influenced decisions.  We must work together to change that mindset and avoid further discrimination.  After all, we are in the 21st century; we are too smart to still be dealing with issues that are decades old.



June 15, 2012

HR Fact Friday: NLRB Outlines Acceptable Social Media Policy Elements

The National Labor Relations Board (NLRB) has issued a sample employment social media policy it believes would be lawful and not interfere with employee rights to engage in concerted activities under the National Labor Relations Act.  You can read the NRLB’s report and sample policy here.National SHRM has published an excellent summary of what an employer can say in such a policy.  Below is that summary:



June 12, 2012

Employee Recognition: No One is Special

Have you ever had someone tell you that you’re “one in a million?”  It sounds like such a nice compliment on its surface, and I have no doubt that whoever told you that was sincere.  But, when you stop and realize there are 7 billion people on the planet Earth that means you have 6,999 other people that are just like you.

David McCullough is an English teacher who was asked to give the commencement speech to students graduating from the Wellesley, Massachusetts high school where he teaches.  The speech has gone viral for this phrase: “You’re not special.”

Mr. McCullough’s message is much more than that.  As I watched the speech, I couldn’t help but remember what is arguably one of the most inspirational movie moments of my lifetime.  If you didn’t make the same connection, you can watch it here.  I’ll give you a hint: you may address me as “O Captain, my Captain.”

What messages do you send to your employees?  I know recognition is important.  People want to know that what they’ve done is good.  Deep down, we’re all still looking for approval from somewhere.  But, if you tell everyone they’re special – whether it’s with a stellar performance review or a celebration every time a project is completed – pretty soon, no one is special because everyone is special.

“Exercise free will and creative, independent thought not for the satisfactions they will bring you, but for the good they will do others, the rest of the 6.8 billion – and those who will follow them. And then you too will discover the great and curious truth of the human experience is that selflessness is the best thing you can do for yourself. The sweetest joys of life, then, come only with the recognition that you’re not special. Because everyone is.”   – - David McCullough

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