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We are pleased to announce that on Thursday July 20th Governor Cooper signed HB 26, also know as the "Wilkes Bill" after the Wilkes v. City of Greenville case that prompted the law's passage.  The Wilkes court decision could have substantially increased workers compensation costs in that once an employer accepted an employee’s workers’ compensation claim by filing a Form 60, the employer or insurer would have had to prove that any alleged medical condition not previously listed on the Form 60 is unrelated to the original workplace accident. 


On the contrary, this new law shifts the burden of proof to injured workers to prove that a subsequent “injury or condition” stems from a work-related accident.


The new law is now effective and applies to claims accrued or pending prior to, on, or after that date.  It is important to highlight that pending claims were added to the law.  We were already seeing the Industrial Commission start to treat existing claims differently so including pending claim is huge.  This also illustrates the negative impact the Wilkes decision was already having on NC employers.


We want to thank those members who sent emails, letters and phone calls to their legislators.  Those efforts were obviously successful.  If you have any questions, please contact CAI's Advice & Resolution team.


Further reading:

Legislators Nullify Impact of Recent Workers' Compensation Ruling 

The full law: House Bill 26


Discrimination is defined by Wikipedia as the treatment or consideration of, or making a distinction in favor of or against, a person based on the group, class, or category to which the person is perceived to belong rather than on individual attributes.  This includes treatment of an individual or group based on their actual, or perceived membership in a certain group or social category.


For the purposes of this article, Employment Discrimination is defined as denying someone employment, or disallowing one from applying for a job, when the grounds for such an exclusion is not related to the requirements of the position.  Protected characteristics may include age, disability, ethnicity, gender, gender identity, height, nationality, political affiliation, religion, sexual orientation, skin color, and weight.


During an employment interview, Human Resource professionals, and most hiring managers, have already been well-trained to stay far away from any questions regarding age, gender, disability or race when talking with the applicant.  It is therefore more often that some of the more casual questions asked during an employment interview, which seem perfectly harmless at the time, can lead to legal trouble for the company later in the hiring process.


Some questions, while not as direct as “How old are you?”, can allow the interviewer to speculate how old an applicant is.  For example, “What year did you graduate from high school?” or “When did you complete your degree?” can provide sufficient information to determine the relative age of an applicant.  If the applicant is over the age of 40, and doesn’t get the job, he/she can point to such a question as “proof” the hiring decision was based on age.


Suppose, for example, an applicant came to an interview using a cane or special brace to assist them in walking.  If the HR professional or hiring manager assumes the injury is temporary, they may innocently ask how the injury occurred.  Should the injury turn out to be an actual disability, and the applicant does not get the job, he/she could point to such questions as raising the issue of a disability, leading to a claim of discrimination.


Marital and family status is also protected as a classification employers are not allowed to ask about.  Questions such as “Do you have any children?” or “What does your spouse do?” “Is this your maiden name? can lead to a legal nightmare in regards to discrimination in the event such a question was raised during the interview and the applicant did not get the job.


It is therefore very important to understand all of the various rules and regulations regarding what is considered protected classifications within the realm of employment discrimination.  Anyone involved in the hiring process should be thoroughly trained and qualified to complete an interview in the most appropriate manner to avoid any unforeseen legal issues after the hiring selection has been made. 


Protect yourself and your company from legal liability and embarrassment by avoiding the wrong questions.  Innocent enough questions can occur when an applicant enters the office, or is taken out to lunch, as breaking the ice chatting is typically harmless, but the wrong questions can subject your organization to the possibility of a claim of discrimination.  Spend time on the interview process from start to finish to avoid complications.


 If you have questions of comments about interview questions or the like please reach out to CAI's Advice and Resolution team.  We are happy to discuss with you.


If you look through most job postings these days, a high school diploma (or equivalent) is usually listed as a requirement. I recently had a member call and ask if this requirement could be considered “discriminatory” and what recommendations could be made regarding the purpose of such a requirement for entry level positions.  In the example, the company had a long-term temporary employee that they were wanting to hire in an entry-level, manual work position but the employee didn’t have a high school diploma/equivalent, which is a requirement for all positions within their organization. This brought up two questions: what does the “law” say and what’s the best practice?


It is always recommended to review the essential functions of a job in order to determine if there are specific qualifications that may need to be included as a requirement. In 1971, the EEOC established that requiring a high school diploma/equivalent for open positions is discriminatory as it can cause disparate treatment regarding minority applicants, meaning that a higher portion of minority applicants within a geographical area did not receive high school diplomas compared to their white counterparts.  In the case, Griggs vs Duke Power, the high school diploma was not job related and wasn’t necessarily a business necessity for the role. More recently, the EEOC has issued that requiring a high school diploma can also be considered discrimination in relation to the Americans with Disability Act (ADA) for those applicants/employees who are unable to attain a high school diploma due to an intellectual disability.  It is important to note that this discussion letter did not say that an employer could not require a high school diploma as a requirement but rather “if an applicant tells an employer she cannot meet the requirement because of a disability, an employer may have to allow her to demonstrate the ability to do the job in some other way.  This may include considering work experience in the same or similar jobs, or allowing her to demonstrate performance of the job’s essential functions.  The employer can require the applicant to demonstrate, perhaps through appropriate documentation, that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement.” The letter also indicated that protection under the ADA would not apply to applicants or employees that did not receive a high school diploma for reasons outside of a disability (such as someone that chose to quit school).


So what does this mean?


While EEOC guidance is very important in influencing HR decisions, I think that it is more important to step back from your positions and ask "WHY" you include specific requirements. If you can make an argument that a requirement is a bona fide occupational qualification then include it as a "preference" so you aren't boxing yourself in. But, if you are including a requirement, such as a high school diploma, based on a preference or maybe a assumption that this requirement would infer a specific quality for your applicants (such as "determination", "goal oriented") then I would reevaluate your purpose.  For example, an employee who has been working for 25 years and applies for a janitor position with your company may be more qualified for that position compared to a recent high school graduate. Are you limiting good candidates by including qualifications that don't necessarily match up to the required job skills? 


As always, please reach out to a member of the Advice & Resolution team for feedback regarding job posting requirements. We would be happy to review your job postings, discuss bona fide occupational qualifications or help work through ensuring you have a process in place to attract the best candidates. 




Learn & GO (Check out the Talent Acquisition Section)



Wow, it seems as if we just received a new I-9 form, that’s because we did, just this past January a revised form was introduced and employers were instructed to begin using it by January 22, 2017.  

As with any good thing, the use of that form has come to an end. On July 17, 2017 a new I-9 form was released, and employers may begin using the new form immediately, and must use it exclusively by September 18th.  The version with revision date 11/14/16 is acceptable through September 17, 2017.

What’s new on the form?

  • The Consular Report of Birth Abroad is added as an acceptable document on List C
  • All certifications of birth have been consolidated into one section, section #2, on List C
  • The consolidation of certifications of birth resulted in a change in the number order for List C
  • Section 2: added space for “Citizenship/Immigration Status” answer based on employees’ response in Section 1. For example, if employee indicates “A citizen of the United States” enter “1” in the space.


Since we're discussing I-9s, here are a couple of interesting I-9 questions (with answer) I saw in a recent article.

Q: Must I reverify a female employee who changes her name upon getting married? What about a transgender employee who changes both name and gender?

A: You may, but are not required to, reverify an employee who has a name change. Since the form does not ask about gender, the same principle should apply to a transgender employee. One other interesting point about transgender employees: The "Other Names Used" field in the form has been changed to "Other Last Names Used" to avoid potential discrimination issues and provide increased privacy for transgender individuals and others who have changed their first names.

Q: I'm completing an internal I-9 audit and my predecessor collected copies of too many documents (e.g., an employment authorization document (EAD) and a driver's license), but only recorded the required documents (e.g., the EAD). May I discard the extraneous documents?

A: This question resulted in a heated debate among my lawyer colleagues. Some took the position that the extraneous document(s) could simply be shredded because they arguably were not collected "in connection with" the I-9 process. A more conservative approach, with which I agree, suggests that, while the superfluous document(s) could be shredded, a memo should be made to the file to indicate that, while the document was collected in the course of completing the Form I-9, it was not used for the I-9 process and thus has been shredded.

As always, if you have I-9 questions, contact the Advice and Resolution team.  There are also a number of articles and resources on I-9 compliance available on myCAI.  

source: Young, Becky.2017, Top 10 Q&As for Tough I-9 Issues,

From Guest Contributor Jenny Sweet, Attorney at Soule Employment Law Firm, Service Provider for CAI's Pre-Paid Legal Services Plan.

As a part of your membership dues, CAI members now receive employment law advice from experienced attorneys. Services are provided by independent, local, licensed NC attorneys assigned to serve CAI members in an open-ended, no-extra-fee environment.

Contact Attorney Jenny Sweet at 919-878-9222 or 336-668-7746.


Background check with magnifying glass


To ensure workplace security and employee safety, many employers conduct routine background checks on applicants for company openings. However, a recent Court’s decision in Tyus v. United States Postal Service, Case No. 15-cv-1467 (E.D. Wis. June 20, 2017), reinforces the importance of Fair Credit Reporting Act (FCRA) compliance in these routine checks.


FCRA Necessities


FCRA is enforced by the Federal Trade Commission and requires that employers give appropriate notice to applicants that they intend to use a background check, or consumer report, to make decisions related to applicants’ employment. Employers must obtain the applicants’ clear permission to do so in a written authorization on a stand-alone document.


If an employer plans on taking an adverse action based on the report, such as not hiring an applicant, it must give the applicant written notice of this pending action, the report upon which the employer relied to make their decision, information on the credit reporting agency, and a summary of the applicant’s rights. This notice provides the individual an opportunity to review the report’s information and confirm or deny its correctness. It also provides the individual with a means by which they may contact credit reporting agencies to dispute or attempt to remove inaccurate information.


After providing an applicant with a reasonable time for complaint or correction, the employer must then inform the applicant orally, in writing, or electronically (a writing is recommended), of the following:


  1. That the employer is moving forward with the adverse action based upon the report;
  2. The contact information of the consumer reporting company that supplied the report;
  3. That the individual can dispute the report’s accuracy or completeness;
  4. That the credit reporting agency did not make the decision and cannot give additional reasons for the adverse action; and
  5. That the individual is entitled to another free consumer report within 60 days.


These requirements apply to adverse actions relating to current employees as well. Failure to comply with these requirements can result in paying actual financial damages suffered by the individual plus attorneys’ fees and costs, or, for a willful violation, statutory damages between $100 and $1,000, punitive damages, and attorneys’ fees and costs.


Facts and Court Decision


In Tyus, the plaintiff applied to work for the USPS as a security guard and was subject to a background check through a consumer reporting agency. The employer mailed the plaintiff a pre-adverse action notice, which told him that he had five days to dispute the report’s accuracy or wholeness. However, the employer then sent the plaintiff an adverse action notice in three days denying his hire. The plaintiff then utilized the employer’s appropriate internal appeals process, as the background check contained numerous negative errors, but it did not work.


The plaintiff then filed suit, arguing that the USPS had violated FCRA’s pre-adverse action notice requirement, which guarantees individuals a reasonable opportunity to address background report information before an employer makes a final decision. The Court agreed and found that the employer’s failure to adhere to its five-day promise interfered with plaintiff’s ability to change the employer’s negative view. The Court noted that the employer likely rejected plaintiff for the job based on the report’s negative information and that the employer could have made a different decision had the plaintiff had more time to correct the errors. Even though the employer argued that the plaintiff had not suffered any real injury, the Court noted that, under the U.S. Supreme Court’s decision in Spokeo v. Robins, when the risk of harm to an individual increases in these FCRA instances, that in and of itself can be a concrete injury


Employers Be Aware


Complying with the applicable provisions of FCRA, along with your own reported policies and procedures, are imperative as this type of litigation has skyrocketed in recent years, especially against national employers. Other agencies, such as the EEOC, have also directed a hard eye towards employers’ background check policies and procedures to ensure compliance with Title VII. As such, employers want to make sure that, unlike Tyus, a slip-up of a couple days doesn’t get them caught up in court.


For more information about FCRA compliance, please contact CAI’s Private Investigator, Kevin von der Lippe, your Advice and Resolution team, CAI's Pre-Paid Legal Services Plan, or peruse myCAI for excellent articles, documentation, and training materials.


Legal Disclaimer: Jenny Sweet is licensed in the state of North Carolina. This article discusses general principles of North Carolina and federal law. It should not be considered legal advice for a particular factual setting and does not create an attorney-client relationship.


Image courtesy of British Columbia Civil Liberties Association via Creative Commons License.


Valuing Company Values

Posted by 1002027 Jul 24, 2017

Do you have a poster at work with a rock climber, a sunrise or some other inspirational scene?  How about a framed copy of the company “Mission-Vision-Values” statement?


Simply framed and hung, these well-intended inspirational messages are forgotten or worse.  Satirists write mocking versions such as “They call it WORK for a reason...all the other four letter words were taken.”


Most inspirational messaging fails because it is aspirational rather than descriptive. We focus too much on how we wish we behaved rather than on the best of how we actually behave today.


When the message is too far from reality, it only highlights the gap.  “Teamwork” images in an autocratic environment (with few true teams) is just a joke.


Discovering and selecting values that describe how you and your most effective people actually behave on their best days is much more useful.  Well-chosen, oft repeated and rigorously enforced, company values provide tangible business advantages in these ways:


Hire and Fire

When you understand the values displayed by your best, you are much better prepared to hire more.  If your success requires a service mentality (selflessness) then you do not hire show horses (performers).  If you need risk-takers who are impatient with today’s methods, why would you hire more guardians to preserve current methods?


Having the right set of values also helps make tough termination decisions. If the chosen values really are required for success in your business, why would you keep someone who cannot be part of that success? 


Judgment Calls

Well-communicated, values are an important filter for individual judgment calls.  When an employee faces a choice, maybe one with both short-term and long-term implications, what guides their decision?  If a company value is “win the war”, they know they can make an adjustment or give a customer concession in the name of long-term success.  Without that stated value, rigid enforcement of an operating rule may do more harm than good.


Service Consistency

You can sense a company with well-articulated and accepted values.  You get a similar experience each time as a customer.  Yes, you may see some of the same purposeful short-comings.  Shared values mean shared behaviors.  This is true whether those behaviors are positive (such as Chick-fil-A) or mediocre (think cable company).


Not Generic

Values reflect your company personality.  Unless you are generic, your values should not be generic.  Honesty is a baseline behavior required in most organizations and stealing will probably get you fired.  But “Honesty” does not define who you are as an organization.  “Under-Promise/Over-Deliver” is a more specific way to say honesty toward customers, for example.


No one thing can be everything, and a good set of values describing your people on their best day is only a tool.  It ties best to the kind of workplace culture you want.  If culture is defined as the way people behave when no one is watching, company values may be the best method to communicate those expected behaviors.

This is the second article of CAI's new Management Tips series. Our goal is to provide you with bite-size information that will help your frontline supervisors become more effective in their roles. We encourage you to forward this information to your supervisors and managers. We will be publishing Management Tips several time per month and we look forward to any feedback that you may have. Thank you!


Disciplinary action which follows a prescribed process that is fair and consistent can create positive results for both the employee and the employer.  Management can reinforce performance objectives as well as employee conduct, while employees can refocus their energies in changing their behaviors and work habits to better meet management’s expectations.


The following tips can assist employers in taking effective disciplinary action:


  • Establish Regular Communications:  Frequent communication regarding conduct and performance expectations will keep problems to a minimum. 
  • Consistent and Fair Procedures for Discipline: Managers should involve HR at the beginning when action is being considered and follow HR’s guidance on the process and next steps. 
  • Obtain the Facts First:  An investigation into any misconduct should be fair, prompt and objective.  Consider the facts from both sides of the issue and make no assumptions regarding fault. 
  • Historical Data:  Compare the circumstances and disciplinary action being considered with similar events from the past to validate your consistency and fairness in this case.  Also consider the individual employee’s disciplinary record.  Has this employee been disciplined before, or is this a “first offense”?   
  • Documentation:  Maintaining proper documentation of any disciplinary action is absolutely essential.  This is your audit trail of what led up to the action that was taken and will serve as your defense down the road if questioned or audited. 


Training on the disciplinary process for supervisors and other levels of management is a great way to ensure everyone is on the same page when it comes to disciplinary action.  Disciplinary action is for the purpose of informing the employee of a need for change; setting the expectations clearly without confusion, anger, sarcasm or mixed messages.  The action plan for needed improvement must be clear, specific and measurable performance.  The employee should be asked if s/he understands what must be done and by when.  Be sure to include a statement about the consequences for not meeting these objectives (ie., further disciplinary action up to and including termination).


Please click add a comment and share your thoughts, takeaways or suggestions for taking disciplinary action.


Former Management Tips!:

Management Tips! Get the Most from 1:1 Meetings 

The reality is that the busier that people get, the more likely they will be to take shortcuts. The demands of our work frequently rob us of all free time. To expedite the hiring process, we sometimes look for ways to 'steal' time back. However, in an effort to save time in the short run, we will likely pay the price in the long run.

The HR function has several areas that are prone to employees taking shortcuts. The first such area is the reference check process for prospective new hires. Reference checks provide key data points in the determination of which candidate to hire. When properly executed, they are an invaluable tool.


However, the pressure to hire someone quickly can take its toll. No one wants to be viewed as an impediment to the hiring process. As such, many HR practitioners see little value in the reference check. They mistakenly believe, because of the associated risk of defamation claims, that most phone calls will elicit a 'name, rank, and serial number' response.


Here is what I know...If I am going to supply you with my professional references, I am going to provide the names of individuals (colleagues and supervisors) that I feel will most likely have good things to say about my character and work performance. And, as a professional, I am going to get pre-approval from those individuals to use them as a reference resource. Going in, I am fairly confident that they will be open to a real dialog with the individual checking the reference.


Best practice tips:


1. When you call references, use a form such as this Reference Check Guide. Perhaps most importantly, you need to dig into the prospective candidate's areas for improvement. I would preface that question with the following statement:


"We all have areas that we could improve upon. In order for me to submit this reference check to the hiring manager, I need at least one area of opportunity for this individual. Without that feedback, my supervisor will invalidate the results".


It is at that point that you can get them to come clean. Once they reveal the opportunity, using clarify questions to dig a little deeper.


2. Clearly communicate to the candidates that a successful reference check process is critical to their chances of being hired. That means the burden lies with the candidate to provide the proper references, and to ensure that references are responsive. If you are not able to connect with references, inform the candidate of the status. This approach allows the candidate to reach out and prod the references.


3. Set a standard for the minimum number of references by job level. For example, a manager role might require 2 former supervisors and 2 direct reports.


Should you have any questions about this topic, please contact me at Tom Sheehan.


Related content:


Reference Check Guide (TA-5)

From Guest Contributor Jenny Sweet, Attorney at Soule Employment Law Firm, Service Provider for CAI's Pre-Paid Legal Services Plan

As a part of your membership dues, CAI members now receive employment law advice from experienced attorneys. Services are provided by independent, local, licensed NC attorneys assigned to serve CAI members in an open-ended, no-extra-fee environment.

Contact Attorney Jenny Sweet at 919-878-9222 or 336-668-7746.


While OSHA has had regulations concerning confined spaces for some time, the Agency recently released a new fact sheet entitled “Confined Spaces in Residential Construction,” to best explain its confined spaces standards affecting residential construction areas like attics, basements, or crawl spaces. This guidance comes as a redoubling effort to protect residential construction workers from common issues that plague confined-space work like hazardous atmospheres or workers falling, being crushed, or drowning.


The Regulations


OSHA has developed a standard for Confined Spaces in Construction (29 CFR 1926 Subpart AA) that applies to spaces meeting the following criteria:


  1. "Is large enough for a worker to enter it;
  2. Has limited or restricted means of entry or exit; and
  3. Is not designed for continuous occupancy."


A confined space that contains certain hazardous conditions may be considered a permit-required confined space under the standard, which means there are heightened danger considerations. A permit-required confined space means the space has one or more of the following:


  1. “Contains or has the potential to contain a hazardous atmosphere;
  2. Contains a material that has the potential for engulfing an entrant;
  3. Has an internal configuration such that an entrant could be trapped or asphyxiated by inwardly converging walls or by a floor which slopes downward and tapers to a smaller cross-section; and/or
  4. Contains any other recognized serious safety or health hazard.”


Although these types of confined spaces do exist in residential construction, the vast majority of attics, basements, and crawl spaces do not typically trigger permit requirements.


Employer Considerations


  1. Ensure that a competent person identifies all confined spaces in which directed employees may work and identifies all permit-required spaces. You are not required to physically examine each attic, basement, or crawl space if your competent person can reasonably and reliably determine a space’s configuration (ex. of  a homebuilder building 50 identical houses; no need to check every attic with the same specifications);
  2. Check for extreme heat in attics (due to heat exhaustion disabling an employee’s ability to exit) or exposed active electrical wire in crawl spaces, as these may make them permit-required spaces;
  3. Determine who is the host (owns or manages the property), controlling (manages overall responsibility for construction site), and/or entry employer (decides that an employee it directs will enter a permit-required confined space), as these designations determine specific information-sharing or supervisory obligations under OSHA standards.


For more information about OSHA compliance, please contact your Advice and Resolution team, CAI's Pre-Paid Legal Services Plan, or peruse myCAI for excellent articles, documentation, and training materials. For additional information  and details concerning this topic, check out its coordinating Frequently Asked Questions.


Legal Disclaimer: Jenny Sweet is licensed in the state of North Carolina. This article discusses general principles of North Carolina and federal law. It should not be considered legal advice for a particular factual setting and does not create an attorney-client relationship.


Image courtesy of CYHS Ecology and the Environment via Creative Commons License.

“What is the most important thing I can do for you?”


Think of the power in this question for a spouse, friend, aging parent or new neighbor. It says, “I care about you” and that “Your happiness and success matter to me.” It is powerful because it is all about that person’s needs, not the asker’s needs.


The question is just as powerful at work for the same reasons. It avoids suggestion box syndrome since it is personal and one-to-one.


When a manager asks an employee this open-ended question for the first time, it may create confusion.  “You mean me? What do I need?” is answered by “Yes, what do you need to do your best, to enjoy your work, to learn what you need, or to remove hurdles in your way?”


“Nothing really. I’m good. Thanks for asking,” might be the response. Everybody has something they need to remove pain or open doors, and everybody knows it if given the time, the prompt and the context to think. Here are some real-life examples:


“I am frustrated every day by lack of tools to do the job.” “The expectations are unclear.” “I see so many opportunities to improve service.” “Operations in the warehouse are unsafe and I worry every day about an accident.” “If I just knew how to use pivot tables my analysis would be more powerful.” “We have one team member who prevents forward progress, can you help?” “I am thinking of leaving for another job because of these issues.”


There are no bad answers. Small items are good and hairy issues are good. The point is not just the response itself, but the impact of asking, caring and working on an answer together.


You are looking for one issue or a related set of issues that deserve attention and resolution. Maybe no action is needed, just some listening and explanation. Another issue might be game-changing for both the employee and business. 


Why ask for just one issue? Like the 80/20 principle, focusing on one item with the most perceived impact makes sense. Bigger discussions and broader topics are better for periodic reviews and career planning.


People’s real and perceived problems are a great window into how they work, what they value and what they expect. You will be surprised at the insights and depth of some answers, and disappointed in the shallow and self-serving responses of others. All are valuable. 


Listen for the real issue. A person who begins with frustrations about others may eventually reveal skills and techniques they need to build. Problems with a poor manager may be a common complaint or could reveal a unique challenge. Expect very different responses from employees because you have asked how you (individually) can help them.


Managers must bring the right intent to the conversation: to discover and act on reasonable problems and opportunities identified. Use this question with an employee as often as it continues to produce useful conversations.

Social media is useful in so many ways. It helps us keep in touch with friends and family, it helps us stay up dated on world events, it even allows celebrities to connect with fans and followers.  But as with most things, there are down sides to the snaps, chats, posts and tweets.

Below are actual employer reviews found on INDEED, a job posting website.    

Managers are incompetent to destructive--and are tolerated by upper management. And there is no hope of advancement or professional development.

Work/Life Balance is pretty much non-existent in this role.

I was not happy with the way things were done in the department I was working in. I think they could use to reevaluate their management and the way things are done. Nobody is trained the same, so you think you are doing things correctly and then you find out you are not.

This is a great place to work if you want to be OUTSOURCED to INDIA! I gave up too many years of my life to this company. I thought they hung the moon. However, when they want you out, you are out. They will make things up just to push you out!! 

Comments like these are tough to read, and when prospective candidates research to discover what working at a company is “really” like, these posts can truly tarnish your brand. Surprisingly, two of these posts are from former employees of a company that is consistently ranked as one of the 100 Best Companies to Work For!

Leaving a company, voluntarily or involuntarily, is an emotional experience, and tensions can run high.   But, especially when an employer makes the decision to terminate an employee, one’s ego can be bruised and lead to negative behavior.  I have never known anyone who admitted that he deserved to be fired. In today’s social media culture, people what to share their experiences with the world, and often before thinking, post an inflammatory comment as a way to lash out at an employer. When this happens, what’s an employer to do?

There are a number of actions an employer can take.

  • Monitor sites for negative comments. Take a proactive stance in managing your company brand. Look for trends. Are all of the comments referencing a single department? Do the negative comments spike at certain times, ex. after salary increases, change in policy? Then investigate the concerns and seek resolution.
  • Social media makes it easy for individuals to exhibit passive aggressive behavior. After all, one can post anonymously or using an alias. So it is difficult to respond directly to the poster. However, some sites allow responses to posts, which provide an opportunity for employers to attempt to reach out to the poster, and resolve concerns. I have seen employers respond with posts like “our goal at (enter company name) is to provide an environment that is engaging for all employees. We regret that you feel that we have missed the mark. Do contact the HR department, we would like to discuss your concerns.” The number of posters who take action is probably small, but at least you let the individual know that you are aware of the concern and want to address it.
  • Be proactive and create a Social Media policy. The policy should address company expectations of on-line behavior as well as consequences for policy infractions. Check myCAI for  sample policies.
  • In the event a termination decision must be made, make sure to cross all “t’s” and dot all “i’s.” Make sure you have all supporting documentation and have complied with all employment law standards to justify the termination. Again, no one ever feels that they deserve to be terminated, but if you have the evidence to strongly support your case and make it clear to the employee during the termination discussion what the determining factors were, it may reduce the employee’s perception that he has been ‘wronged.’
  • If you know that the negative comments are not warranted, and do not reflect the workplace environment, then ask contented employees to post positive comments. These posts will overshadow the negative one(s) and push them down on the comment thread.


There is seemingly no end in sight for the social media craze. I must confess, I too once posted a negative comment on a site after I didn’t get a job that I KNOW I was best qualified for, don’t we all feel that way, but after later reflection, regretted it.

Due to the potential risk to your brand, employers must have a strategy in place to manage social media. For more information, contact the Advice and Resolution team.

Big Brother Lincoln (5) and Estelle


Many of you may have noticed that I have been absent the last few months…we welcomed Estelle “Stella” Hanes Hinesley into the family on March 15.  The last few months have been full of snuggles, some sleepless nights and a full heart but it is time for me to get back to adult conversation and a semi-normal schedule and I returned to work full time on July 5.


I am not “stay at home mom” material—I have always loved working and find that I am a better mom by being a working mom so I knew I would be returning to work (and some days looked forward to it).  That said, after Estelle’s birth I have been busy with not only recovering from a C-section but adjusting to our new family life and the thought of returning to work seemed a bit overwhelming.  Thankfully, prior to my leave, CAI’s HR Manager, Lauren Hardwick and my manager, Rick Washburn had several conversations with me and we were able to plan for my leave and work toward a return-to-work solution that would be beneficial for me and for the company. Having a good plan leading up to my leave and clear expectations regarding my return prepared my coworkers for helping with my workload and for me as I balanced my life-work balance with a new family dynamic.


From a business perspective, any type of leave can be burdensome and leave companies worried about filling the workload during the employee’s absence, however good planning and open communication can bridge the gap between the work/life balance.


Below I have included some tips in preparing for a successful maternity leave for both the company and the employee:


-Prior to leave:

-Setup several conversations between the manager and HR to discuss expectations, deadlines and project transition.  It might be helpful to build in time prior to the employee’s due date to complete tasks and to set a time frame for the employee to not start any new, time sensitive projects in case the mother needs to go out of work earlier than expected.

-Setup a meeting with HR to discuss pay, STD, FMLA (if available), benefits, tentative return date

-Remind employee to setup out of office reminders on email, voicemail, mail, etc. Employee may want to direct             voicemail and emails to a coworker to manage customer expectations and not overwhelm the employee upon             return.

-During Leave:

-HR should check in periodically and have a return to work conversations a few weeks prior to leave ending.

-Be sure to update the employee regarding any major changes at the company-no one wants to hear second hand that there is a reorganization in their department, etc.

-Return to work plan: if able, try to work with the employee to allow for a transition plan allowing the employee flexibility to return to work half days or a few full days a week before returning full time. This will also help the employee to arrange for childcare, do some “test runs” on getting out the door to daycare/school/work and ease into separating from the baby.

-Prepare for Lactation Accommodation: Do you have a space available for the employee to take breaks? You may want to discuss schedule planning for pumping sessions but remain flexible with the mother during her first few weeks back as she may be adjusting to her pumping schedule once she returns to work. See A&R Insight on Nursing Mother Amendment: A&R Insights: Nursing Mother Amendment 

-Return-to Work:

-The first day back might be tough. A “Welcome Back” note or email will do wonders to make the new mother feel supported.

-Plan on a transition back into work duties-if able assign short projects or tasks to allow the employee time to transition back into duties. Allow the employee to block a period to catch up on emails, voicemails, mail, etc.

-Schedule a communication meeting with manager to discuss any staffing changes, projects, transition schedule, etc. 


The most important factor in ensuring a successful leave for mother and company is open communication among the employee, manager and Human Resources from the beginning. Supporting an employee during a life event such as the birth of their children can only strengthen employee engagement and company success.


“Companies are made up families, not just employees. I have the ability and strength to make my professional contributions because of the love and support of my own family. Likewise, as employers, when we get great contributions from our team, we can recognize their support network enables them and appreciate the full picture.”

-Stephanie Weeks, Vice President of User Experience at Blackboard




Now that I am back full time, I look forward to helping you with any labor law or human resource needs! Contact me at Emily Hinesley



Complying with the Pregnancy Discrimination Act 

Nursing Mother Amendment 

FMLA and Pregnancy 

Handbook: Special Items - Lactation Accommodation 

Parental Leave (Maternity) 

A Happier Working Dad 

Women in the Workplace & How to Promote Female Equality 

Recently, I had the pleasure of presenting a first-time supervision workshop for an onsite customer. Of the dozen people attending, no one was a new graduate or inexperienced in the workforce. Each had significant work experience.

All were there because they had been recently promoted to positions of management over other employees.  We began by discussing how the role of management had changed since they initially entered the workforce.  Some remembered managers as "commanders" barking orders to subordinates. Others described their early managers as  watchdogs, standing guard to make sure everyone complied with procedures. Another description was that of manager at the top of the organization chart, dispensing information on a "need-to-know" basis.


Our discussion then turned to the various leadership styles people use depending upon their employee's maturity level and skill level.  Most attendees were under the impression that treating all employees exactly the same way was the appropriate thing to do.  When we looked more closely, it became evident that each situation deserved its own personalized approach.  This was one of several "ah-ha" moments from the two-day workshop.  Another was what made the new supervisors successful in their old roles was not necessarily going to serve them in their new roles.


This is where I usually reference one of my favorite books, What Got You Here Won't Get You There by Marshall Goldsmith.  It's a wonderful reference that illuminates the new habits we need to adopt to succeed in managing the work of others.  Examples include:  sharing information, giving proper recognition, listening, not passing the buck and being able to express regret and to apologize.


After we began looking at how to build credibility with our new staff, we took a short break.  I checked in with my host of the day to let him know how things were going.  He said he was glad I called because it reminded him of the gifts he had for each attendee.  As it turned out, he had purchased a copy of Goldsmith's book for each person.  Since we had never discussed it previously, I was surprised and delighted.  Everyone present seemed genuinely happy to receive the book and eager to read it. 


If you are unfamiliar with it, pick up a copy or listen to it during your daily commute.  The main message for me was that being promoted means you must humble yourself in order to serve others.  Which reminds me of another great book, The Servant as Leader by Robert K. Greenleaf.  But, I'll save my thoughts on that one for another day.

Who better than the source to provide guidance on a subject? That specific advice and opinion from the expert is valued immensely. And when dealing with nuances of federal regulation, there are often what seem to be shades of gray. That’s why the return of the U.S. Department of Labor opinion letters is great news for employers.

Secretary of Labor, Alexander Acosta, announced recently the return of the letters, which had been a 70 year practice of the Agency before being replaced by “general guidance” in 2010.   Opinion letters address specific questions of concern to employers or employees regarding regulations such as FLSA, FMLA, etc.   For example, do exempt employees have to be paid for a full day, if only half a day is worked?  Well, there is an opinion letter on that very question.

Opinion letters also provide some degree of protection for employers, in that actions taken as a result of guidance from an opinion letter may enable the employer to avoid liability under the “good faith” defense, even if a court later deems an opinion letter to not accurately apply the law.

The Department of Labor has established a webpage for employers and employees to submit questions or search for existing opinion letters. But wait, don’t rush to submit your question.  Remember that the process for opinion letters is arduous, and the response time is not speedy.  The Department has stated that it will “exercise discretion” in selecting which questions to address. So, in this case, patience is a virtue.

Your Advice and Resolution team is always here to assist with wage and hour questions. Give us a call anytime!

The Occupational Safety and Health Administration (OSHA) has announced a proposed extension of the July 1, 2017 deadline for electronic submission of injury and illness logs to December 1, 2017.

Originally, OSHA’s new rule, effective January 1st of this year, required employers who are subject to OSHA’s recordkeeping requirements to electronically submit their 2016 300A (injury and illness data) form by July 1, 2017 and their 2017 300A by July 1, 2018.  Effective 2019, these forms will be due by March 2nd.  Details regarding OSHA’s recordkeeping requirements can be found here


CAI reported on May 30th that OSHA had announced it was not currently accepting electronic submissions of injury and illness logs.  OSHA also announced at that time its intention to extend the July 1st deadline, although no proposed new deadline was provided.


Contained in the Notice of Proposed Rulemaking for extending the submission deadline by five (5) months, was an announcement that the agency plans to also reconsider, revise or remove other provisions within the rule itself.  For example, the rule currently contains a controversial anti-retaliation requirement which OSHA believes restricts post-injury drug testing as well as incident-based safety programs. Also up for reconsideration is the plan to post injury and illness information on OSHA’s website. 


We will continue to monitor for additional information about the extension and other possible changes to the rule and OSHA’s interpretation of it, including the controversial anti-retaliation provisions, and will alert you to any developments.


CAI will keep you updated as conditions change.  Call ourAdvice & Resolution team if you have any questions on this proposed extension or rule.