Monthly Program & Luncheon

Board Officers

President

Katherine Kleemann

President Elect Retha Youell, SPHR

VP of Programs Sarah Tobola, SPHR

VP of Membership Lee Felder, SPHR

Treasurer

Krystal Broussard, PHR

Secretary Dwayne Walters, SPHR

Past President Geanna Kincanon, SPHR

Directors & Chairs

Certification Director Max Anne Jones

College Relations Director

Tami Overby

Diversity Director Liz Galvan, PHR

Government Affairs Director

Windelan Johnson, PHR

Public Relations Director Stacy Overby, SPHR

SHRM Foundation Director

Thom Holt, SPHR

Workforce Readiness Director Jennifer Cabezas

Hospitality Chair

Kimberly Williamson

HRSW Ambassador Chair Cheryl Young, SPHR

Newsletter Chair

Lisa Villalobos, PHR

Business Seminar Chair Diana Dean, SPHR

Social Engagement Chair Melissa Green

Website Chair Bob Hensz, SPHR

TOPIC: Leader of the Pack! HR Unleashes Lean Six Sigma

WHEN: April 3, 2014

TIME: 11:30: Lunch, Networking, & Announcements 12:00 Program

WHERE: Hilton Garden Inn 3081 University Dr. (east side of Highway 6, across from Veteran’s Park)

COST: $12/ BV-SHRM member $15/ non-members Note: The guest price is now $15

SPEAKER: Nancy Bartlett

RSVP: Please RSVP by noon, Friday, March 28 to

rsvpprograms@gmail.com. MENU: Chicken fried steak, gravy, mashed potatoes, fried okra, salad, rolls,

tea, water

Program Details

Nancy Powell Bartlett was a public sector employee for over 25 years leading teams and working with community leaders to achieve verifiable results. Prior to forming her own company in January 2010, Nancy was a Managing Director for the city of Irving, Texas, where she led a number of diverse city departments, including Human Resources. Nancy was responsible for creating innovative city programs and services and served as the Organizational Champion for the city’s Lean Six Sigma initiatives.

BV-SHRM Newsletter CHAPTER NO. 0330 APRIL 2014

SPEAKERs BIO

Leader of the Pack! HR Unleashes Lean Six Sigma As an HR leader, are your department’s actions perceived as frustrating or facilitating the work of the organization? Is HR leading the charge or running to catch up? HR absolutely can be the facilitator promoting potential and performance and producing breakthrough results for the organization! Join us to learn how one city completely transformed its culture while achieving extraordinary outcomes and balancing its budget without sacrificing people or services.

Please notify

Krystal Broussard

of any changes to

your contact

information. krystal@boydreadymix.com

Make sure you notify us of email

changes or changes to your contact information!

Visit us and

become a Fan of

BV-SHRM on

Are you ? BV-SHRM is.

BV-SHRM has created a LinkedIn

account and we encourage members to

connect with us through this social

media.

Chamber After Hours

April 3, 2014, 5:30-7:00 p.m.

Brazos Valley Symphony

2014 Chamber Job Fair

April 16, 2014

College Station Hilton

http://bcschamber.org/Events/EventInformation/JobFair

HYPE Career Fair (Helping Youth Prepare for Employment)

May 20, 2014

Brazos Expo Center

www.hypedbrazosvalley.org

HR Southwest

October 5-8, 2014

Ft. Worth, TX

Registration opens Mar. 3

2014 Workplace Diversity Conference & Exposition

October 13-15, 2014

New Orleans, LA

Sheraton New Orleans

Diversity Quote of the month There never were in the world two opinions alike, no more than two hairs or two grains; the most universal quality is diversity.

- Michel de Montaigne

(French philosopher and writer)

Mark Your Calendars

DDIIVVEERRSSIITTYY MMAATTTTEERRSS

Diversity Dates for April

Arab-American Heritage Month Stress Awareness Month Tartan (Scottish-American) Heritage Month Work Life Enrichment Month

13 Bun Pi Mai/New Year (Laotian) 13-19 Holy Week (Christian) 14 Vaisakhi (Sikh) 14 Passover (Jewish) 14 Birthday of Guru Nanak (Sikh) 20 Easter Sunday (Christian) 20 Orthodox Easter/Pascha 21 27 Holocaust and Heroism Remembrance Day 29 Ninth Day of Ridván (Bahá'i)

Thanks and kudos! Excerpts from e-mail to Katherine Kleemann regarding 2013 Gold EXCEL Award

Date: March 17, 2014

Dear Chapter President:

On behalf of the Society for Human Resource Management, I am pleased to confirm that your

chapter has been awarded the 2013 Gold EXCEL Award. This award recognizes outstanding

achievements in chapter operations and a commitment to providing meaningful programs and

services to your members. It also is recognition of your continued growth and development as a

business leader, capable of developing strategies that lead to business success! We are very proud

of your leadership, and thank you for your continued partnership with SHRM.

Congratulations on your achievement.

Sincerely,

Elissa O’Brien, SPHR

Vice President, Membership

Share Your Ideas

The Board always welcomes your comments and suggestions. See an interesting article online or have a process that could benefit other members? Share it with your BV-SHRM Chapter.

President’s Piece

Howdy! I hope this newsletter finds all of you enjoying a bit more sunshine and warmer temperatures. I know I will write a retraction to this in August, but right now I am tired of the cold weather! I am looking forward to spring, and bluebonnets, and blue skies, and I’ll even tolerate a few bugs (just a few). I am looking forward to our next speaker, as well! Nancy Bartlett will be telling us how Lean Six Sigma can be applied to HR initiatives. She applied these principles while working for the City of Irving, TX and will help us understand how to use it in our own organizations. Please do not forget to RSVP by Friday, March 28 this month so that we can accommodate the Hilton Garden Inn’s catering timeline. Additionally, please put it on your calendar that HR Southwest will be held October 5-8, 2014 in Fort Worth. Registration is now open at hrsouthwest.com. Register by June 1, 2014 to receive the early-bird registration discount. We hope to have a great group representing BV-SHRM in Fort Worth! See you on April 3! Sincerely, Katherine Kleemann

Be on the lookout

for the above

logo!

It will be a

featured symbol

this year as we

expand the

marketing of our

chapter!

FOUNDATION NEWS The Susan R. Meisinger Fellowship for Graduate Study in HR is a premier source of

funding for first-time master’s degree students in Human Resources. The award honors

former SHRM President & CEO, Susan R. Meisinger, SPHR.

The fellowship is designed to support master’s degree students who are either members

of SHRM or certified HR professionals through the HR Certification Institute.

One winner is selected annually to receive a fellowship of up to $10,000. Additional

fellowships may be awarded, depending on funding available, quantity and quality of

applicants, and the discretion of SHRM.

How to Apply

Download and complete the application form. Note: This link is a little odd, but should

work. Otherwise, go to shrm.org to find out more.

Workforce readiness

The Chamber Job Fair is scheduled for Wednesday, April 16, 2014 from

11:30am–4:00pm at the Hilton College Station. This event reaches

approximately 500 to 800 potential employees from throughout the Brazos

Valley.

If you are interested in volunteering at the BV-SHRM Resume Review booth,

please contact Jennifer Cabezas at jcabezas@cstx.gov.

Jobs available

Training & Development Consultant – Professional Development Training –

TAMU (Posting Number: S00667FY14) http://jobpath.tamu.edu/postings/68927

Regional Human Resource Manager - Knife River – To apply, please send

your resume by e-mail to Laura.Gonzalez@kniferiver.com

Welcome to Legal Briefs for HR, an update on employment issues sent to over 5000 individual HR professionals, in-house counsel and business owners

plus HR and legal professional organizations (who have been given permission to republish content via their newsletters and websites), to help them stay

in the know about employment issues. Anyone is welcome to join the email group . . . just let me know you’d like to be added to the list and you’re in!

Back issues are posted at www.munckwilson.com under Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.”

It’s time to spring some new stuff on you:

1. There’s An App for That – Want to quit your job but can’t find the words? There’s an app for that. The makers of “Breakup Text” and

“Makeup Text” have some spiffy emoticons that will say how you really feel. It’s available on the Apple iTunes store as “Quit Your Job.”

2. For the Record – In a rare win for employers, an ALJ for the National Labor Relations Board (NLRB) found that an employer’s “no

recording” rule does not violate the NLRA. The Team Member Recordings policy states that conversations are not to be recorded with a

tape recorder, including a cellphone or any electronic device, without prior approval of the employee’s store or facility leadership. It

further states the purpose as eliminating a chilling effect to the expression of views when one person is concerned that his or her

conversation is being secretly recorded because this can inhibit spontaneous and honest dialogue especially when sensitive or confidential

matters are discussed. The NLRB’s GC tried to argue that this policy would limit employees’ ability to gather evidence of illegal employer

conduct but the ALJ countered that there were other ways for employees to submit such evidence, including contemporaneous written

reports and/or their own testimony about what was said. Whole Foods Market (Oct. 2013).

3. Cold Reality – If you have employees who work outside during the winter months, don’t forget that OSHA classifies frigid conditions as

a recognized workplace hazard that you should be protecting against under the general duty clause. Go to

www.osha.gov/dts/weather/winter_weather/index.html for information on “cold stress” and what you can do to limits its effects on your

workers.

4. Handbook Helper – The NLRB thinks some of the usual handbook policies amount to an unfair labor practice. As part of your regular

handbook spruce-up, you may want to consider what a NLRB administrative law judge recently found to constitute ULPs:

1. Confidentiality – Policy prohibited employees from disclosing or using Confidential Information, which was defined to include

“compensation structures and incentive programs.”

2. Courtesy – Policy prohibited employees from “use of profanity or disrespect to a customer or co-worker or engaging in any activity

which could harm the image of the Company.”

3. Employee Inquiries – Policy prohibited anyone except the HR Department from responding to a request for employee information.

4. Social Media – Multiple issues, including prohibition on saying negative things about the company in social media, using the company

logo and requirement to contact a VP before speaking to the media.

5. Solicitation and Distribution – Prohibition against third parties soliciting and distributing literature on property adjacent to the

company’s premises.

6. Dress Code – Prohibition on wearing insignias on clothing, other than that issued by the company (Note: the prohibition against

wearing pins was upheld, as there was a business reason for it . . . the employees work on cars and pins could scratch the car or fall

into the engine while repairs are being made). Boch Imports, Inc. dba Boch Honda and Int’l Ass’n of Machinists (Jan. 2014).

5. Heads’ Up, Federal Contractors –

1. As promised in his state of the union speech, President Obama signed an executive order on February 12, upping the minimum wage

for employees of federal contractors effective January 1, 2015. The new rate is $10.10/hour for nontipped workers and $4.90/hour

for tipped workers (so long as the addition of tips raises the tipped workers’ pay to at least $10.10/hour). The increase will apply

when a new contract is signed or an existing contract is renewed, after January 15, 2015. The rate will then change annually,

beginning in January 2016, and will be tied to the CPI index. If you are in negotiations for a new federal contract and/or renewal,

this is going to be part of the discussion.

2. The DOL’s VETS division posted proposed changes to employers’ VETS-100 and VETS-100A reporting, to mirror changes in the

affirmative action regulations for VEVRAA that kick in on March 24, 2014. VETS proposes to [a] rescind the regulations governing

preparation of VETS-100 reports, which are currently required for contracts valued at $25,000 or more that were entered into

before December 1, 2003, on the belief that such contracts have either expired or been modified making this regulation obsolete;

[b] require reporting via VETS-100A be submitted in the aggregate rather than identifying each category of protected veteran; [c]

change the name of the VETS-100A form to VETS-4212 Report; and [d] further technical changes to the definitions, contract

Legal Briefs

Member Newsletter

clause, methods of filing the Report and more. The changes , if accepted, will take effect one year after the effective date of the

final rule.

6. EEOC Attack – The EEOC really does not like your separation agreement. For starters, you shouldn’t use a dusty template or borrowed

form since the issues addressed in these agreements are constantly changing and subject to state law variations. More changes may be

coming soon. The EEOC filed suit on February 7, to challenge an employer’s use of [1] employee cooperation clause; [2] non-disparagement

clause; [3] nondisclosure of confidential information clause; [4] general release; [5] covenant not to sue (even though the clause had

language stating that this promise does not prevent the employee from filing a charge of discrimination, which is a right that can’t be

waived); and [6] attorney’s fees clause (don’t even get me started on this). EEOC v. CVS Pharmacy, Inc. (E.D. Ill. 2-14). It’s a Title VII

lawsuit that claims these clauses interfere with Title VII rights, specifically the right to file a charge with the EEOC or FEPA’s (like the

Texas Workforce Commission’s Human Rights Division, in this state) and to cooperate with the agencies’ investigations. This case will be

a must read, as it proceeds. Stay tuned for updates!

7. More Fun With FMLA – There are a couple of bills filed recently which employers may want to comment on:

1. HR 3712 – Family and Medical Insurance Leave Act, if passed, would add a tax on employers and on employees to fund the

entitlement to 66% pay continuation while an eligible employee is on FMLA leave.

2. HR 3999 – Family and Medical Leave Enhancement Act, if passed, would expand the definition of “employer” to include those with

between 25 and 50 employees and qualify employees to take FMLA if there are 25 employees of the employer working within 75

miles of the employee’s worksite. It would also provide 4 hours within any 30-day period and up to 24 hours in any 12-month period

for a FMLA-eligible employee to take parental leave to “[1] participate in or attend activities that are sponsored by a school or

community organization; or [2] relate to a program of the school or organization that is attended by the employee’s child or

grandchild.” Care to join me for the summer solstice and autumn equinox jubilees at the lake?

3. You can read full text (although HR 3999 is not posted just yet) at http://beta.congress.gov. This is the new website that will

eventually replace the Thomas website.

4. If you are real FMLA wonk, then you will take the time to read all 330 pages of the ABA subcommittee report on the FMLA. It’s an

annual summary of FMLA cases posted at

http://www.americanbar.org/calendar/2013/02/federal_labor_standardslegislationcommitteemidwintermeeting/papers.html. Use

the table of contents to find precedent on narrow issues that are bugging you. Pour a big mug of coffee and start reading!

8. Richard’s Road Map – The interim General Counsel of the NLRB, Lafe Solomon, is long gone and the new GC, Richard Griffin is settling in.

On February 25, he sent a memo to the regions telling them what issues he wants to be involved with, by mandating that they be

submitted to the Division of Advice. Some of the items that caught my eye include:

1. Cases that involve whether employees have a Section 7 right to use employer’s email system or that require application of the

discrimination standard in Register Guard

2. Cases that involve the applicability of Weingarten principles in non-unionized settings

3. Cases in organizing situations raising the issue of union access to list of employee names/addresses where the employees are widely

dispersed or have no fixed duty location

4. Cases involving “at will” provisions in employer handbooks that are not resolved by extant Advice memoranda

9. Background Noise – Yes, your background checks can give you a big liability headache, if not done properly. If you use any third party

person or entity to obtain information used to determine suitability for employment, you have triggered the Fair Credit Reporting Act.

The FCRA has many technical requirements, including provision of a written notice and authorization to the applicant or employee who is

the subject of the background investigation. The regulations are very specific about the limited amount of content that can be on the

combo notice and authorization form. One employer is on the receiving end of a class action lawsuit because they added language to

release the employer from liability arising from the background checking process. That’s a no-no and the employer remains liable, even

where it uses the third party’s (deficient) FCRA forms. Gezahegne v. Whole Foods Market California Inc (N.D. Cal. 2-14).

10. DOL Dissed – The GAO posted a 32-page report on its website, noting the substantial increase in FLSA litigation during a time when the

DOL’s Wage and Hour Division almost eliminated dissemination of guidance for employers. The report recommends that WHD should

develop a systematic approach for identifying and considering areas of confusion that contribute to violations (e.g. application of

exemptions) to help inform the development and assessment of its guidance. Ya think? The report is posted at

http://www.gao.gov/products/GAO-14-69.

11. The Sporting Life – Sandwiched between March Madness, MLB spring training camps and the looming NFL draft, here are some tasty

treats for your inner sports nut:

1. Student Union - A NLRB investigator heard from Northwestern University and former football players in late February, in a

dispute where the latter claims they are employees of the university and entitled to form a labor union to protect their interests.

The investigator commented that the players’ arguments were “weak” but regardless of her decision, this one is likely headed to the

full Board.

2. Feeling Used – Class action litigation between the NCAA and student-athletes appears to have survived dueling motions for summary

judgment and trial is set for June 9. The student-athletes, led by UCLA basketball player Ed O’Bannon, claim that the NCAA

conspired with co-defendants EA Sports and Collegiate Licensing Company (CLC) to restrain competition for commercial use of

players’ names, images and likenesses.

3. Raiderette Revenge – An Oakland Raiders cheerleader filed suit, claiming the team violates CA wage and hour laws by treating the

team’s cheerleaders as independent contractors and not employees. She argues the team is paying their cheerleaders a flat fee

that does not approach the applicable minimum wage for the hours worked, which includes time spent cheering at games, rehearsing,

performing at charity events and participating in the annual swimsuit photo shoot. She also wants reimbursement for work-related

expenses, like false eyelashes, hair stylist services and yoga mats. The cheerleaders are paid once, at the end of the season, which

violates state law requiring at least twice monthly payment of wages, if the cheerleaders are employees. Lacy T. v. The Oakland Raiders (CA Sup. Ct. Jan. 2014).

4. March Badness – It is hoops fans’ favorite time of year and watching the game no longer requires calling in sick or taking a long

lunch at the nearest sports bar. Live feeds are readily accessible via desktop computer, laptop and smartphone. If you’ve got

concerns about lack of individual productivity and a drain on computer system bandwidth, you may want to say “no.” Gambling can be

a concern, too. Increasingly, though, employers are looking for ways to tap into the excitement about the games to amp up spirits,

build camaraderie and have some fun. Ideas range from casual days (sporting of one’s team colors/logo); converting a TV-equipped

conference room into a watch party with snacks, brackets/pools with prizes or donating the cash to a favorite charity; games (match

the mascot or logo to the university) and talent contests (e.g., chili cook-off, sing your alma matter, free throw prowess, best

celebration dance). Be creative and have some fun, bay-bee!

12. Stated Differently – Here are some hot topics for you multi-state employers:

1. California – Effective August 13, 2014 employers located or doing business in San Francisco who have 20 or more employees

regardless of location are subject to a “ban the box” requirement. Job applicants may not be asked via an employment application or

otherwise, before the first “live” interview, to disclose criminal history information. Certain offenses (e.g., arrest not leading to

conviction, deferred adjudication, juvenile offenses) are off limits at all times. There is a notice of rights to be given to the

applicant after the first “live interview” or conditional offer if criminal history info is requested and a multi-step process if criminal

information is used to deny employment, including a seven-day waiting period which gives the applicant an opportunity to rebut a

negative report. There is a mandatory poster, to be displayed in San Francisco workplaces (in three languages) and ads targeted at

San Fran applicants must affirmatively state the employer will consider qualified applicants with criminal histories. Enforcement

options include fines and civil litigation.

2. Illinois – The IL Supreme Court has endorsed one of the toughest employee misclassification statutes in the U.S., finding that it is

not unconstitutional and upholding a $1.6 million penalty assessed against a small roofing company that insisted the ten workers were

contractors and not employees. Bartlow v. Costigan (Dir. of the IL Dept’ of Labor)(Ill. Feb. 2014). The IL law presumes that most

workers in the construction industry are employees. That presumption can be overcome if the employer can prove up a three-point

test. The elements are that [a] the individual is free from direction and control of the company over the means and manner of

performing the work; [b] the work done is outside the usual scope of services performed by the company; and [c] the individual is

engaged in an independently established business. An “individual” can also be a sole proprietorship or a partnership unless both the

three-point test plus an additional 12-point test is satisfied. The penalties are stiff, with each day of misclassification being a

separate offense, triple damages for willful damages and further doubling of damages for repeat offenders. That’s how you get to

$1.6 million with only ten workers misclassified. Even though the statute limits the three-point test to the construction industry

(for now), the same three-point test is used on all employers under the IL unemployment compensation statute . . . leaving scofflaws

vulnerable to penalties for failure to properly classify and remit UI taxes to the State.

3. Massachusetts – Failure to pay wages can expose both the company and individual managers to treble damages under the

Massachusetts Wage Act, and some enterprising workers are trying to use this statute to sue for unpaid bonuses by claiming they

are “wages.” A recent decision clues employers in on how to pen an employment agreement to avoid that outcome, by doing these

three things – [1] put the base salary and the bonus in different sections of the agreement; [2] have a fully integrated clause that

says the document contains the entire agreement of the parties; and [3] put contingencies on the bonus, such as remaining as an

employee through the end of the year or reserving the discretion to grant to deny bonuses. Boesel v. Swaptree, Inc. (Mass Super.

Ct. Dec. 2013).

4. New Mexico – NM, AL, KY and SD are the only states which do not have a data breach notification law. That list may be one state

shorter, since NM legislators passed a bill on February 17 which appears to be poised for enactment. If passed, the bill would

require companies to notify state residents if their unencrypted personal information has been breached while in the possession or

control of the company. If the breach affects 1000 or more residents, the company must let the state attorney general know about

it within 14 of discovering the breach and must notify the affected individuals within 45 days.

5. New York City – The Earned Sick Time Act, which takes effect on April 1, 2014, has been amended in significant ways. The law now

applies to employers of 5 or more employees instead of the original cut-off of 25 employees. The original version phased in the

effective date based on economic tests, but now it applies on April 1 for all covered employers. The definition of an employee’s

“family member” has been expanded to include siblings, grandchildren and grandparents. The exemption for manufacturing industry

employers is gone. The time in which an employee can file a complaint has been stretched from 270 days to two years. Employers

must keep records of use of the benefit for three years, not two. For full text of the changes, go to

http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=1636850&GUID=FD23CC16-F69E-4F06-B448-

251F1CFC922D&Options=ID%7CText%7C&Search=&FullText=1.

6. North Carolina – The NC Business Court found that a noncompete signed by an employee who was acquired by the successor

employer via an equity purchase (not an asset purchase) was not enforceable. The employee had not been previously bound by a

noncompete and the new one imposed by the successor employer stated the consideration as including initial employment, continued

employment, promotion, incentive compensation and/or an increase in pay. The Court found there was no “new” employment due to

the nature of the purchase and the pay/benefits were pretty much what he had enjoyed while working for the predecessor, so there

was no consideration and no enforceable noncompete. Amerigas Propane LP v. Coffey (NC BC Feb. 2014).

13. Calendar This – Break out that fresh 2014 calendar and pencil in May 15 and 16 for the University of Texas School of Law’s 21st Annual

Labor and Employment Law Conference in Austin, TX. The agenda and registration info is now posted at

https://utcle.org/conferences/EL14. Libby Sartain, former CHRO at Southwest Airlines and Yahoo!, has accepted my invitation to be

our luncheon keynote on Friday, May 16 and I will co-present with Bill Munck on a combo labor and employment/intellectual property

topic, right after lunch. Hope to see you there! I’m also looking forward to speaking at the TAB Employment Law Symposium in San

Antonio (July 17 & 18), the North Texas Compensation Association meeting (August 21) and the North Texas SHRM conference in Denton

(September 5).

14. For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-

State and my hometown Wichita State Shockers, who are killin’ it in hoops), follow me on Twitter. I’m at @amross.

Until next time,

Audrey E. Mross

Labor & Employment Attorney

Munck Wilson Mandala LLP

600 Banner Place

12770 Coit Road

Dallas, TX 75251

972.628.3661 (direct)

972.628.3616 (fax)

214.868.3033 (iPhone)

amross@munckwilson.com

www.munckwilson.com

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