Employment law

*** Guest Blog Alert! *** When to Hire HR, and 3 Simple Steps to Take in the Meantime!

*** Guest Blog Alert! *** When to Hire HR, and 3 Simple Steps to Take in the Meantime!

***Guest Blog!***

The question of when to hire HR will vary amongst companies, industries, and business leaders. One answer that will never change, though, is that indeed you DO need someone dedicated to HR and the sooner the better. If you have employees, you need HR (even if it’s just fractional); in today’s highly regulated, highly visible climate, there’s nothing but risk if you’re not paying attention to the basics, at very least. What I would recommend to any business leader, though, is to consider your bigger vision. What do you dream for your company in 5 years? 3 years? 6 months? Whatever it is, utilize your HR support to get there.

Christin Johnson is the founder and leader of iStartupHR, LLC, an HR consulting firm located in Raleigh, North Carolina.  For more information about Christin and/or iStartupHR, check out her website: istartuphr.com 

When ICE is on Your Doorstep... Lessons Learned from the Recent 7-Eleven Raids

When ICE is on Your Doorstep...  Lessons Learned from the Recent 7-Eleven Raids

On January 10, 2018, 98 7-Eleven stores nationwide were raided by ICE resulting in 21 arrests of alleged undocumented workers.  Needless to say, it is suspected that more raids are to come, probably in industries known to have immigration issues like food service and construction.  Allow me to go ahead and answer some of the questions in your head...

Don't Hug Me.

Don't Hug Me.

Are you a boss who hugs his or her co-workers?  If yes, STOP.  Recent caselaw out of the Ninth Circuit says this is a no-no.  Read more about why.

The Office Holiday Party Survival Guide

Consider this blog post Part Two of our October 2015 post on workplace harassment and Halloween, which you can review here.  

'Tis the season! It's time for the annual office Holiday party.  The party where you get drunk with your co-workers and realize that they are people just like you.  Also, the party where lawsuits are made... sometimes.  This post is the Survival Guide for the Office Holiday Party with the general theme: #bewareofdrunkmistletoe

Tip #1:  Attendance is never required.  

Not everyone wants to be part of a celebration, whether it is for religious or personal reasons.  If you are going to throw a holiday party, be conscious of the fact that not everyone may care and that has no bearing on that person's work performance.  In other words, do not retaliate against an employee who throws shade at your office holiday party.  Let them be a Grinch on their own terms! Attendance at holiday parties should always be voluntary with no threat of being treated better or worse for attending or not.  This voluntariness may also save you the headache of a worker's comp claim if someone were to get injured.  Remember this case we talked about last year? 

Tip #2:  If there is drinking, there is no driving. 

If you are going to have booze at the holiday party (which is probably everyone reading), make sure you offer easily-obtained sober rides home.  This could be something as extravagant as a party bus or as low-key as an Uber.  The point is, employees attending an office party with alcohol should have access to transportation home.  Bonus points if the sober ride home is complementary and paid for by the employer.  

Also, make sure someone is responsible enough to observe those that may have had too much to drink but may also try to drive.  If someone's state of sobriety is even slightly in question, get them a ride home.    Remember, the term is "DD" for Designated Driver and not "DDD" for Designated Drunk Driver.  Another easy thing you can do regarding alcohol consumption is limit its use without being a prude.  For example, tell the bartenders no shots or limit an open bar for just an hour or so.  

Side note:  If there are booze there should also be food.  Hangry people are bad enough but hungry drunk people are the worst.

Tip #3:  Invite partners but kill the mistletoe.

Inviting spouses, partners and, significant others is a good way to get know your co-workers.  It can also help keep the crazies in line.  Most partners will do a decent job making sure the other isn't belligerent or causing trouble.  This will also make the quality of conversation way better.  Speaking as an attorney, we are some of the most boring people you've ever met.  Luckily at our office holiday party, the spouses bring up "normal" conversation topics like movies and music as opposed to attorney conversations that usually start with "Have you read that opinion out of the Fourth Circuit?"   Whether kids attend or not should be coordinated by the employees with kids.  Offering childcare paid for by the company is a cool perk that may bring out the parents in the group who never get to party. 

Regardless of who is invited to the party, leave the mistletoe behind.  Employees should be reminded of policies prohibiting things like physical contact (this could be as easy of reminding employees of your anti-harassment policy).  Party games like Twister, Spin-the-Bottle, or  Cards Against Humanity should also be shelved. (However, if you are reading this and can still master Twister, I'm impressed beyond words.)  

Tip #4:  Consider doing more than just drinking and eating.

Food, drink, and great conversation are a great way to bond with co-workers but you should add something else to the office holiday party.  Consider hosting a White Elephant gift exchange to the mix, organize a private screening of a movie, or have the party at a fancy bowling alley.  This will break up the excessive drinking and will also allow people to bond in a different way.  

Tip #5:  Remind employees that holiday parties are a luxury, not a right.

Monitor those in attendance at the office holiday party and make sure everyone is happy, healthy, and having a good time.  If someone's bad behavior starts to show, politely ask them to leave and/or order them an Uber home.  To the extent trouble can be stopped before it happens, the better for all.  Also, despite my title to Tip #5, office gatherings are, in my opinion, a great way to show appreciation for your employees and should happen at least annually.  It's important that your workforce operate as a team, even if the workforce is hundreds of people.  Bringing everyone together and showing them you care about them (and want to hang out with them) will go a long way when it comes to recruitment and retention.  

A Summary of the Office Holiday Party "Do's" and "Don'ts:"

  1. Don't dance like you're at a Frat Party, Strip Club, or Junior Prom.  This is a fine line so use discretion when hosting a dance party for employees.
  2. Don't allow employees to be over-served with alcoholic beverages.  
  3. Do arrange for transportation home for those employees who cannot drive.
  4. Don't hug, kiss, or grab an employee.  We're talking handshakes and high-fives only, people. 
  5. Do invite spouses, partners, significant others, and kids (if the party is kid-friendly). 
  6. Don't comment on appearances or engage in behavior that would be considered harassment inside the workplace.  
  7. Do offer food at the party.
  8. Do make holiday parties voluntary in terms of attendance. 
  9. Do remind employees of policies and expectations before the party.
  10. Don't be a total Scrooge! Allow employees to have some amount of innocent, non-harassing fun. Just be aware if things start to go badly (and in the words of Liz Lemon, "SHUT IT DOWN"). 

If you have any other questions specific to your office Holiday party, give me a call or email and we'll chat! Just remember:  #bewareofdrunkmistletoe 


PS:  This movie looks funny and is timely considering this post. 



Trick or Treat! A Review of Workplace Harassment ... Just in time for Halloween

Courtesy of NBC and The Office.

Courtesy of NBC and The Office.

A re-cap from last year... #bewareofsexybacon 

Consider this blog post part of a segment called "101 Ways to Get Sued." Halloween is upon us and with it comes people dressed like "Sexy Bacon" and murderous villains from our favorite movies.  It seems like nowadays almost every single halloween costume is offensive to someone and as humorous as a offensive can be, allowing said costumes into the workplace is a workplace harassment claim waiting to happen.  You may not have to get rid of the Halloween party altogether but you may want to have people dress up like themselves as opposed to one of these.   

The EEOC defines workplace harassment very broadly.  Harassment includes verbal or physical conduct that explicitly or implicitly "affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment."  Not all harassment needs to be sexual in order to count.  In fact, you can essentially harass anyone about anything because the key word is "offensive."  Since employees all have their own beliefs, lifestyles, appearances, and thresholds, it is impossible to know what is going to offend certain people.  From an HR standpoint, this is way we try to avoid everything that may offend someone and why HR people get the reputation for being the "Vampires-of-Fun" (since we suck all the fun and humor out of work).

So my lesson for Halloween is this:  Celebrate without costumes.  By eliminating the common source of harassment, you should help keep your company out of a harassment lawsuit. Also, consider making attendance at any company-sponsored Halloween party 100% optional.  That way those employees who are anti-Halloween don't feel obligated to attend and won't be offended by the celebration of ghouls and goblins.  Halloween can still be fun (and even funny) but the costumes need to remain safe at home for the really fun Halloween parties on Saturday, 10/31.

Want more info about workplace harassment and/or planning an HR-friendly party?  I'm only an email away // ashley@feltonbanks.com.  

To Compete or Non-Compete, That is the Question.

At the end of July, the Fourth Circuit Court of Appeals rendered a decision about non-compete agreements that creates further confusion about restrictive covenants in our state.*  Since many employers (and readers) face the “Compete or Non-Compete” question, this case is worthy of review.

In KLM Communications, Inc. v. Tuschen, the employee at issue (Tuschen) signed a non-compete agreement upon being hired by KLM.   In part, this non-compete states:

While I, the Employee, am employed by Employer, and for 1 years/months afterward, I will not directly or indirectly participate in a business that is similar to a business now or later operated by Employer in the same geographical area. This includes participating in my own business or as a co-owner, director, officer, consultant, independent contractor, employee, or agent of another business. “ 

Sound familiar? Of course it does.

Tuschen worked at KLM Communications for about 6 years until she tendered her resignation and accepted a new position with a competitor.   Naturally, KLM Communication was not happy with this development and sought to enforce its non-compete agreement, particularly the provision cited above.  The Fourth Circuit Court of Appeals said “nice try” and decided the non-compete was overly-broad and therefore unenforceable.  But…. why?

If the above excerpt from KLM Communication’s non-compete agreement looks familiar, you are probably in good company considering that same exact language pops up in a lot of templates I’ve seen.  The Fourth Circuit’s opinion stresses that this clause is too broad since it prohibits the former employee from working at any competitor in any position.   Since Tuschen can’t mow lawns, cater business lunches, or serve as a realtor fora competing company, the Fourth Circuit said it could not be enforced (yes, these are actual examples given in the opinion).   The Fourth Circuit also states that even the “indirect” language is too broad using the following example to illustrate:  “[I]f Tuschen has retirement accounts invested in mutual funds, she may have to monitor their holdings to be sure she is not investing in companies similar to RLM.”  Because there was no legitimate business interest related to this provision of the non-compete, the court said the entire document was unenforceable.  In other words:  you cannot prevent an employee from engaging in work that is distinct from the duties actually performed by the employee. 

Another curious part of this decision is that the Fourth Circuit denied the opportunity to “blue-pencil” the agreement by simply striking the bad provision.  Instead, the Fourth Circuit claimed (1) even if they could revise the provision, they wouldn’t (thanks to a 2016 North Carolina Supreme Court case that stated non-compete agreements found to be unreasonable cannot be unilaterally amended by a court); and (2) there is no way to really revise this provision without completely re-writing the agreement. 

Another interesting observation?  The Fourth Circuit states right away that non-competes are disfavored in North Carolina, a statement (and general tone) that has been left out of a lot of recent North Carolina state cases like Employment Staffing Group, Inc. v. Little in 2015. 

If you were not already struggling to draft a non-compete agreement, I’m positive you are now. YOU'RE WELCOME. 


The [*]:  The Fourth Circuit Court of Appeals is the federal appeals court for North Carolina so their decisions often matter to North Carolina employers. However, since they are a federal court interpreting state laws, state cases often take higher precedence. 




Form I-9 ... Not on Time

For all my HR professionals out there, you know that the first rule of filling out a Form I-9 is to make sure all verification documents are UNEXPIRED.  You are also well aware that you should always use the most recent version of the Form I-9 (a.k.a. one that is unexpired).  If you have hired a new employee lately you may have noticed this: 


It looks like the only Form I-9 currently available is in fact a few days expired.  But before you panic, you should know the USCIS has also noticed this and has plans to launch a new "Smart" Form I-9 in the near future.  In the meantime, you are permitted to use the newly expired Form I-9 which you can find here.  

For those curious about the future "Smart" Form I-9, it is supposedly going to be Millennial-friendly, meaning it will have drop-down menus, embedded instructions, and validations so people can stop "accidentally" entering 20-digit social security numbers.  Welcome to the 21st century... in 2016.

That Time Kesha Taught Us Something about Employment Law

This one's for the employees. 

If you ever check People.com or a similar celebrity-centric website, you've heard about Kesha (f.k.a. "Ke$ha") and her on-going legal battle to get released from her recording contract.  For those of you who don't know what a "Kesha" is, I recommend you start here.  

Image Credit:  RollingStone / ABC/ Getty 

Image Credit:  RollingStone / ABC/ Getty 

Kesha, who brought us charming ballads like "Tik Tok" and "Die Young,"  signed a recording contract with music producer Dr. Luke.  Allegedly over a 10-year period of time Dr. Luke was sexually and physically abusive which prompted Kesha to file a lawsuit in 2014.  This 2014 lawsuit included a request to be released from the recording contract due in large part to the abuse allegedly suffered.  A few weeks ago, a New York Supreme Court Judge ruled against Kesha's request.  This in turn made Taylor Swift,  Lady Gaga, and these fans very angry.  

Although I am not privy to the details of the recording contract at issue, my guess is it is written a lot like an employment contract since at its core, it's a contract for employment.  As you may know, most states (North Carolina included) are "at-will employment" states which means an employee can quit a job at any time for any reason and employers can terminate an employee at any time for any reason.  There are exceptions to the at-will doctrine such as employment discrimination and as you may have guessed, employment contracts.  

Kesha's case is an interesting example of when at-will employment may turn out to be a better deal for employees.  Usually at-will employment is seen as a vicious tool for employers to purge itself of unwanted employees but as seen in Kesha's case, it is kind of the same vicious tool for employees.  

The lesson learned is this:  tread cautiously before signing an employment agreement, particularly a long-term employment agreement.  Employment agreements may give you a certain level of job security but it may also give you a taste of job-clauterphobia because you are likely stuck for the duration of the contract.  So long as you are decently intelligent, it would be rare for a court to void a contract or otherwise release a party from a contract without some mutual agreement (or a lot more evidence of sexual and physical abuse).  Also keep in mind most employment contracts include non-compete language that may inhibit your future job-hunt within a reasonable time and territory after the agreement.   

Another lesson learned?  Never (ever, ever, ever) sign an employment agreement without taking it to an attorney for a review - even if it's a quick review.  I promise it will be worth learning what exactly you are getting yourself into.