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July 31, 2013

Is Personal Email on a Company Phone Really Personal?

Filed under: General HR Buzz,Legal Issues,Privacy10:11 am

A recent case caught my eye this week regarding the personal use of a company-issued smartphone.  Smartphones are everywhere, in the possession of nearly everyone, and can do just about anything!  Anything, except – - erase your personal email account all by itself when you forget!

In the case of Lazette v. Kulmatycki (N.D. Ohio 6/5/13), that is just what happened.  Lazette was issued a Blackberry by her employer.  She was told that she could use the company-issued phone for personal email.  She had an account with Gmail, and believed she had deleted that account from the phone before giving it to Kulmatycki, her supervisor, upon exiting the company.  She had the understanding that her phone would be “recycled” to another employee.  After leaving the company, she learned that instead of deleting her email account, her former supervisor had been accessing her Gmail account, reading 48,000 emails over a period of eighteen months!  Among the contents of the accessed emails were communications about Lazette’s family, career, financials, health, and other personal matters.

Lazette has filed suit alleging the company and her former supervisor violated the Stored Communications Act, which prohibits the unauthorized access of electronic communications.  Lazette presented sufficient evidence that will allow her suit to proceed to discovery.

How can an employer manage this type of risk?  Here are a few suggestions:

  • Have a communications policy.  The policy should explain that employees should have no expectations of privacy related to electronic communications sent or received on a company-issued/owned mobile device, including personal accounts.  Include a statement prohibiting employees from accessing the personal email or internet accounts of fellow coworkers.
  • Wipe the device clean.  It is a common practice to reuse electronic equipment within a company.   Instruct IT personnel to remove all personal data of the former employee upon the return of any electronic equipment.
  • Isolate the device first.  Prior to wiping the device completely, make sure information stored on the device is not needed for legal proceedings in an ongoing or potential lawsuit.
  • Never, ever, ever read your employees’ personal email no matter how tempting it may be!

Need help drafting a policy or employee handbook?  See

Source:  Hyman, Jon.  “Who Owns Personal Email on an Employer-Issued Smartphone?”  The Practical Employer.  Available online at


July 29, 2013

“Take Me Out to the Ball Game!”

Filed under: Performance Management,Performance Pro1:22 pm

It’s opening night and you take three friends to a baseball game!  As you and your friends weave your way through the crowds to your front row seats on the third base line, your anticipation and excitement increases.

It is now the bottom of the 9th and bases are loaded.  The opposition is up to bat and your team is ahead by one point.  The pitcher sends through a perfect ball and the batter swings, connects, and sends the ball flying towards right field.  The right fielder starts running for the ball.  It’s going to be a close one!  At the last moment he flies up against the wall, reaches out, and catches the ball with the tip of his mitt! The crowd goes wild!  Your team has just won the game!

One of your friends turns to the group and says, “Man, that was the most amazing feat of athleticism I have ever seen in my life!”

Another friend says, “Well, yeah, that was pretty great, but it’s opening day; the crowd is full of energy – that catch was pure adrenaline.”

Your third friend says, “No, that was complete luck.  The sun was in his eyes. I bet he couldn’t do that again if his life depended on it.”

And you finally say, “Are you kidding, this is the Major League.  If he can’t repeat that play again he has no business playing ball.”

You have four people, all having witnessed the exact same situation and each person has an entirely different perspective on what happened.  Does this ever happen in the workforce?

The only way to get your friends on the same page is to define the criteria for success before you go to the game.  Before you even set foot in the stadium, you need to define what makes a good play.  What actions are going to constitute this player being the MVP verses someone who needs more practice?

That is what factors or competencies on an evaluation can do for performance within your organization. By clearly defining the core competencies or skills required for success, you are setting the bar for behaviors that equate to a Valued Performer verses someone who Needs Improvement.  By agreeing to these expectations before the situation occurs, you are able set the standard for excellence verses unacceptable behaviors, before you get to the game.


July 26, 2013

ADA Turns 23!

Signed into law July 26, 1990, the Americans with Disabilities Act (ADA) turns 23 today!    The ADA provides civil rights protections to individuals with disabilities ensuring equal opportunity in employment, public accommodations, public transportation, state and local government services, and telecommunications.

The current text of the ADA includes changes made by the ADA Amendments Act of 2008, which became effective on January 1, 2009.  Another of the ADA regulations includes its ADA Standards for Accessible Design providing disabled individuals more physical freedom to access buildings, work sites, housing, transportation, and other places previously inaccessible to them.

Employers will find this website especially helpful for guidance on workplace accommodations for disabled employees and applicants, as well as programs to help them affirmatively recruit disabled individuals.

Check out the website that provides comprehensive information on disability programs and services in communities nationwide.



HR Fact Friday: Fourth Circuit Says ACA Employer Mandate Valid, Insurance Regulation Within Commerce

The U.S. Court of Appeals for the Fourth Circuit July 11 declared the Affordable Care Act’s employer mandate a valid exercise of Congress’s power to regulate commerce under the commerce clause of the U.S. Constitution (Liberty Univ. Inc. v. Lew, 4th Cir., No. 10-2347, 7/11/13).

The mandate is “simply an example of Congress’s longstanding authority to regulate employee compensation offered and paid for by employers in interstate commerce,” the court held in an opinion co-authored by Judges Diana Gribbon Motz, James A. Wynn, and Andre M. Davis.

The ruling comes in a case filed by Liberty University Inc. and two individual plaintiffs that challenged both the individual and employer mandates.

The employer mandate requires employers with more than 50 full-time employees to provide health care coverage to employees and their dependents. If an employer fails to do so, or fails to offer coverage that meets the mandate’s affordability requirements, it would be required to make an “assessable payment” collected by the Treasury Department in the same manner as a tax.

The Obama administration recently announced it will delay implementation of the employer mandate until 2015.

Source:  Bloomberg BNA,, Mary Anne Pazanowski


July 24, 2013

The Numbers Are In!

Filed under: Compease,Compensation,Salaries & Pay6:00 am

The average pay increase employees may expect in 2014 is 2.9% according to an article from CNNMoney, with the findings of Mercer’s Rewards, a consulting business.   This is up slightly from an average of 2.8% in 2013.  However, this is a significant increase from early in the recession when increases in 2009 were averaging 2.1%, if increases were happening at all.  Because of the continued high rate of unemployment in June of 7.6%, employers still manage to have their pick of the talent pool without having to bust their budgets, keeping tighter reins on recruitment and retention costs.

Other factors affecting wages are the costs associated with retirement benefits and the still cloudy path of health care benefits under the Affordable Care Act.  Employers will eventually have to increase wages to remain competitive.  Jeanie Adkins, a partner of Mercer’s Rewards, stated, “Employers recognize that their greatest challenge is to retain their top performers to avoid post-recessionary flight.  This means they have to reward them.”

Possessing a good compensation philosophy is crucial to managing your salary budget, meeting key business strategies, and keeping employees contented.  It reassures employees that you are well-equipped with the current market trends, aware of current and future workforce needs, and are paying them a fair wage.  If you don’t have a compensation philosophy, you need one and we can help!


July 19, 2013

HR Fact Friday: HR Q&A – I’d Like to See My Personnel File

Filed under: Compliance,Employment Law,General HR Buzz — Tags: 6:00 am

Q:   We have an employee who requested a copy of their personnel file.  We’ve always treated these as extremely confidential.  Am I obligated to comply with this request?        Signed – Worried Sick

A:  Dear Worried Sick -

I have a very simple answer for you, “It depends!”  Now, before you roll your eyes and pull out the headache medicine, I’ll explain why.  Understandably, when an employee asks to view, let alone, copy their personnel file, HR folks tend to get a little anxious because we start imagining the worst case scenario.  This could be a signal they are preparing to file a claim, but at the very least, they may have a problem or are just becoming disenchanted with their job.

Federal law requires access in certain instances, to review their records regarding exposure to toxic substances or harmful physical agents, as well as their medical records.

The majority of states have laws governing employee rights to access their personnel files, but these laws vary significantly by state.  Some of the differences include:

  • Whether the law applies to public employers only or to both public and private employers
  • If both current and past employees may have access
  • If access is required, how much time does the employer have to respond to the request
  • What types of documents may be viewed and what may be excluded
  • When and how the inspection of the file will take place
  • Whether documents may be copied
  • If an employee who disagrees with the file’s contents can add statements regarding their disagreement

Allowing employees to view their files may actually help prevent a lawsuit, even if you are not required by law, if the files are in good order and issues are appropriately documented.  Allowing access also sends the message that you have nothing to hide, are confident in your HR practices, and believe you can defend your actions.  Employees sometimes think that what is in their files “belongs to them.”  While that is not entirely true, if you kept the employee informed, had them sign the documents and gave them copies, then most of what they will be looking at, they should already have!

The bottom line is to check your state law, determine what you must allow and what you will allow, document your new policy, and call your employee.  If your house is in order, you have nothing to worry about!


July 17, 2013

Performance Pro v3.1.3 Feature Update Announcement

Filed under: Performance Pro9:47 am


HRN is pleased to announce an exciting set of feature updates to Performance Pro. This 2nd update of 2013 is scheduled to take place on Friday, July 19th at 8PM EDT. Users should not see any service disruption, however, they may need to log out and log back in to see any changes.

Some of these exciting new feature updates and workflow enhancements include:

  • Automatic Saving will now occur on the Appraisal screens after changes are made to scores and/or comments.
  • Multiple dated comments can be added to each factor and/or goal. Users can determine if they want these comments to display on the Appraisal Views.
  • Goal Action Steps are now viewed/rated on the actual Evaluation screen instead of in a pop-up window.
  • Routing History has been added to the Route tab for Current Appraisals.
  • Administrative Users will now view/edit scores and comments for Multi-Appraisers on a Multi-Appraiser tab instead of through a link to a separate page.
  • Goal Progress can be tracked on individual goals in the Appraisal Process and viewed in the Employee Goal Tools.
  • Administrative Users can Edit Historical Appraisals.
  • The Notes tab will automatically display notes for the past year and users can show or hide notes depending on the date range entered.
  • Routing Notes can be added to a form and/or appraisal to allow users to document changes they have made on the routed item or reason for not approving.
  • Shared Notes can have a notification sent to inform the appraiser and/or employee that a note has been shared with them.
  • Alert prompts have been added if user attempts to undesignate all appraisers or multi-appraisers.
  • Administrative Users can choose to allow employees to view any documents on the employee’s Additional Documents tab in Performance History.
  • Administrative Users can choose to allow appraisers to view Employee scores and comments prior to merging an appraisal.
  • Administrative Users can choose to require users to have at least one Future Goal prior to marking Ready.
  • Administrative Users will have the ability to uncomplete the employee’s last completed appraisal.

As a reminder: New features affecting the appraisal process will need to be turned on by an administrative user. There will be training sessions available for Administrative Users who would like to learn more about these new features. Clients interested in attending a training session may call 1-800-940-7522 to talk to their customer support representative.


You Can’t Ask If I’m Pregnant, but You Can Ask Me to “EAT MOR CHIKIN”

Filed under: HR Consulting — Tags: 8:20 am

A Chick-fil-A franchise restaurant in Concord Commons, North Carolina, violated federal law when it refused to hire Heather Morrison, a female job applicant, because she was pregnant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed earlier this month.  At the time of the interview Morrison was six months pregnant.  During the interview, the owner asked Morrison a series of pregnancy-related questions such as how many months she had been pregnant; when she was expected to deliver; her childcare plans after giving birth; and how much maternity leave she planned to take.  Morrison thought the owner’s questions were inappropriate, but answered them because she wanted the job.  Three days after the interview, the owner called Morrison and informed her that she would not be hired and to call back after she had the baby and had childcare in place.  This alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.

Commenting on this lawsuit, EEOC Supervisory Trial Attorney, Tina Burnside, said, “Pregnant women must be treated in the same manner as other applicants, and employers should not make inquiries related to pregnancy or deny a woman a job based on pregnancy.”

Though this case was filed against the owner whose alleged conversation with this applicant was in violation of the law, employers should take heed and make sure their hiring managers are well versed as to what questions are appropriate during an interview.  Providing training and interview practice sessions to help managers become adept at asking open-ended, job-related questions can save your company time, money, and embarrassment.  No business wants this type of free publicity, especially when you may have to put the cows (“EAT MOR CHIKIN”) back out to pasture!

Do your hiring policies and procedures need audited?  Do your hiring managers need interview training?  Our experts at can help!



July 12, 2013

HR Fact Friday: Supreme Court Speaks (sort of) to Issue of Same Sex Marriage

Filed under: FMLA — Tags: , , 6:00 am

Now that the Supreme Court has effectively allowed same-sex marriages to go forward in California and ruled in United States v. Windsor that a key portion of the Defense of Marriage Act (DOMA) is unconstitutional, employers must consider the implications of that decision on their employee benefit plans.

The Windsor decision made clear that same-sex couples who are recognized as validly married under state law are recognized as spouses under federal law. However, the Court did not address which state law governs (i.e., the state in which the couple currently resides or the state in which the same-sex marriage was performed). Accordingly, further regulatory guidance, legislation and/or judicial action is required to make clear the full impact of the Windsor decision.

Employers of employees residing and working in states which recognize same-sex marriages are required by federal laws governing employee benefit plans to treat same-sex spouses and opposite-sex spouses equally for purposes of the benefits that the employers extend to spouses. Those equal benefits and rights required under federal laws include, for example, automatic designation as beneficiary under 401(k) and other retirement plans, unless the same-sex spouse consents to designation of another beneficiary; spousal survivor annuities under retirement plans; COBRA continuation coverage; FMLA leave to care for a same-sex spouse; and tax-free spousal coverage under employer-provided group medical, dental or vision plans (i.e., income will no longer be imputed to same-sex spouses when same-sex spouse coverage is provided). Note:  if the repeal of DOMA is determined to be retroactive, tax refunds may be available to employees and employers if same-sex spouses paid income and employment taxes in prior years on health care coverage.

Notably, the Supreme Court confined the Windsor opinion and holding to lawful same-sex marriages in those states that recognize them and did not address the portion of DOMA which allows individual states to not recognize same-sex marriages performed in other states. As a result, employers in states which do not recognize same-sex marriages are not required by Windsor to extend benefits to same-sex spouses. However, this issue almost certainly will be the subject of future administrative guidance, litigation and/or legislation — employers in those states should watch for that future guidance. It is possible that same-sex spouses residing in states which do not recognize same-sex marriages will be classified differently for different purposes.  For example, the IRS may choose to recognize lawful same-sex marriages for purpose of income tax filing status regardless of the state in which the couples currently reside while, conversely, the employers of couples who work and reside in a state which does not recognize same-sex marriages may not be required to recognize the marriages for benefit plan purposes. It is likely that employers with employees in multiple states will have to treat same-sex couples differently in different states.

Self-insured medical and other welfare benefit plans governed by ERISA are not required by Windsor to make benefits available to same-sex spouses because there is currently no federal law requiring them to do so and state insurance law mandates are preempted by ERISA.  Commentators warn, however, that employers which continue to limit benefit coverage to opposite-sex spouses risk legal challenges claiming discrimination under federal laws.

Employers should review their retirement and welfare benefit plan documents, particularly the definition of “spouse,” to determine that they are consistent with Windsor (i.e., the plan should not reference DOMA) but should hold off making plan amendments without further guidance which will be forthcoming – hopefully soon.


July 10, 2013

Delay in “Play or Pay”

Filed under: Compliance — Tags: 7:49 am

The question in recent months has been, “Play or pay?” referring to the Affordable Care Act (ACA) that was to go into effect in 2014.  The President’s administration announced last week that this requirement is being postponed until 2015.

The mandate to “play or pay” will require that all large employers, defined as having 50 workers or more, offer affordable health care meeting basic minimum requirements for coverage, or pay a penalty.  It is hoped that by delaying this mandate employers will have more time to comply with the extremely complex requirements of the law.

Uninsured individuals who were counting on this healthcare remedy to begin in 2014, may be eligible for subsidized coverage through the online health exchanges, which are still scheduled to open October 1st of this year.  To be eligible for these subsidies, individuals must meet income requirements and not have employer health coverage available that meets the affordability and basic coverage rules.

What does this mean for employers?  Stay tuned.  Formal guidance is expected to be published in the next week to explain how the postponement of one part of the ACA will affect other provisions of the law.

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