The NLRB’s Assault on Employee Handbooks: Potentially Illegal Workplace Rules and Policies

Article Courtesy of David Farren of Jaburg | Wilk PC

Most employers and their legal counsel take pride in rules and policies that have become standard fare in the workplace. Employee Handbooks almost always contain, and certainly should contain, conspicuous provisions that expressly disavow the existence of any contract of employment or any intent to alter, amend or modify the parties’ at-will employment relationship. Handbooks are also typically stuffed with policies designed to protect an employer’s confidential information, discourage bad behavior and promote courtesy and professionalism in the workplace. These rules and policies make sense most of the time, and are perfectly legal most of the time.
Knowing what is perfectly legal, however, is not always easy. We lawyers don’t always know a rule or policy is suspect until a court or government agency tells us it is. And, although the National Labor Relations Act (NLRA) does not immediately come to mind when thinking about employment relationships outside of the labor union context, it should.
The National Labor Relations Board (NLRB), a federal agency that enforces the NLRA, has been actively promoting what it calls employees’ Section 7 rights to engage in “concerted activities.” Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” These Section 7 rights apply to all employees and prospective employees, regardless of their union status or affiliation.
Employees engage in Section 7 concerted activities when they act in concert with, or on behalf of, their fellow employees for their mutual aid or protection with regard to the terms and conditions of their employment. “Concerted” does not have to be one-handed. Even a single employee can engage in concerted activities by lodging complaints on behalf of all employees. An employer who interferes with, restrains or coerces its employees in the exercise of their Section 7 rights commits an unfair labor practice in violation of Section 8 of the NLRA.
So what does that have to do with Employee Handbooks?  Read on!


David N. Farren is an attorney at the Phoenix law firm of Jaburg Wilk and works in employment law, antitrust, and commercial litigation. He can be reached at 602-248-1048 or at

Sleep incentives: Napping on the job is good

While there are few regulations for getting a good night’s sleep outside of the trucking or airline industry, its importance is now on corporate America’s radar. A Harvard University study found that the average worker who experiences insomnia and sleepless nights loses 11.3 days of productivity. Translated into human capital terms, that’s $2,280 per employee and $63.2 billion when accounting for the whole nation’s workforce.

Meanwhile, a recent University of Michigan study suggests napping at work can improve worker productivity and increase workplace safety. According to the study, participants who napped for an hour during the day maintained a professional composure and solved assigned tasks at a faster rate compared to their sleep-deprived colleagues. Continue reading

Top 10 Bad Questions to Avoid When Interviewing a Job Applicant

Article Courtesy of David Farren of Jaburg | Wilk PC

When interviewing job applicants, there are good questions and bad questions. A good question seeks relevant and helpful information about the person applying for the job and about the applicant’s job qualifications consistent with a business necessity for asking the question.  A bad question seeks personal information that is irrelevant to the applicant’s job qualifications and lacks any business necessity for asking the question.  A bad question may be used as evidence of an unlawful discriminatory hiring practice.

Title VII of the Civil Rights Act of 1964 and similar state laws generally prohibit discrimination against employees and job applicants on the basis of race, color, religion, national origin, sex (gender), ancestry, age, disability or even sexual orientation.  A job applicant need not prove that he or she was not hired because of unlawful discrimination, only that unlawful discrimination was a motivating factor in the decision to not hire the applicant.  Such proof can be direct or circumstantial.  Asking a bad question can be the direct evidence of a discriminatory motivating factor that an unsuccessful applicant needs to file a charge and pursue you in a lawsuit.
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Impact of Young V. UPS and Steps for Employers

Article Courtesy of Gary J. Jaburg  of Jaburg | Wilk

Since 1978, pregnancy and pregnancy related health conditions have been protected conditions under the Pregnancy Discrimination Act (“PDA”).  A recent Supreme Court case, Young v. UPS may increase the ability of pregnant workers to sue their employer for failure to accommodate or disparate accommodation.  Young claimed she had been a victim of both gender and disability based discrimination due to a denial of workplace accommodations available to other employees who had similar health related work restrictions.

Facts of Young v. UPS

Young become pregnant and her medical providers advised her not to lift more than twenty pounds.  UPS’s Employee Handbook requires that their employees (at least in the department where Young was working) be able to lift up to seventy pounds.  Young was unable to meet this work requirement.  She used all available leave, including her FMLA leave.   UPS required Young to take an extended, unpaid leave of absence during which time she lost her medical coverage. Young returned to work at UPS.  Subsequently she sued them claiming that she had been the victim of gender and disability based discrimination under the Pregnancy Discrimination Act based on disparate treatment.

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Government Agencies Are Out To Bust You For Misclassifying Your Employees As Independent Contractors

Government Agencies Are Out To Bust You For Misclassifying Your Employees As Independent Contractors

Article Courtesy of David N. Farren, Attorney at Jaburg | Wilk PC

Both federal and state labor authorities are hot on the trail of companies who hire employees and call them “independent contractors.”  The United States Department of Labor (DOL) has entered into a Memorandum of Understanding with a number of states, including Arizona, mandating the enforcement of laws pertaining to properly classifying employees as employees.  The DOL and these states have made this issue an enforcement priority and may soon be asking questions at your place of business.

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Time and Attendance Software Can Significantly Reduce Overtime

Although the economy has shown strong signs of recovery, this does not mean that companies are looking to spend money frivolously or in a reckless fashion. Certainly organizations are looking to retain their current staffing levels and add to their talent pool with qualified individuals who can help them achieve their goals, but neither is a sign of fiscal irresponsibility.

Even though there are large number of businesses looking to add to their payrolls, they would prefer not to let this particular business expense get out of hand. Overtime, while necessary in many instances, can become costly for companies. These extra monetary payouts on top of an individual’s hourly wage can add up pretty quickly.
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HR Software Can Help Maintain OFCCP Compliance

Whether a company is hiring one employee or 100, the onboarding process is multi-layered and calls for great attention to detail. This is because at some point, any company that holds federal contracts will be audited as a part of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs. According to America’s Job Exchange, the purpose of these audits is to ensure that companies are operating within established affirmative action and discrimination guidelines.
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Why it is Crucial to Designate a HSA Beneficiary?

As high deductible health insurance plans are becoming more popular, an important component is health savings accounts (HSA).  In addition to having current tax advantages, there is specific tax treatment of HSA accounts upon the death of the account holder.  While not a requirement for HR departments, here is a quick tip that employees may find valuable.

All participants in a qualified health savings account should designate a beneficiary for their HSA account.  Upon the death of the HSA account holder, the favorable tax treatment allows the HSA account to transfer to the surviving spouse (but only the surviving spouse) as if it was their HSA account. There are no tax consequences and the account becomes the surviving spouse’s account.

The beneficiary designations are not held by the employer, rather they are held by the servicing financial institution or HSA trustee, which may be a bank, an insurance company, or anyone already approved by the IRS to hold the HSA accounts.

If the spouse is not the designated beneficiary, the account is no longer an HSA and the fair market value of the HSA becomes taxable to the beneficiary in the year in which the account holder passes. There is an exception for qualified medical expenses of the account holder paid within a year after the account holder’s death. If an estate is the beneficiary, the value is included on the decedent’s final income tax return.

If the employee does not elect a beneficiary, the HSA does not automatically transfer to the spouse, but rather it receives the unfavorable non-spouse tax treatment. Therefore, it is good practice to remind employees to review their beneficiary designations at least annually, including their HSA account.


About the author:  Gary J. Jaburg is the managing partner of the Phoenix law firm of Jaburg Wilk. He assists clients with employment and business matters, workouts of financial issues and business divorce. Gary can be reached at 602.248.1020 or

This article is not intended to provide legal advice. Always consult an attorney for legal advice for your particular situation.


3 Tips to Improve Human Resources Management Skills

Human resources management involves the development of a wide range of skills for one to be successful in this profession. Every organization has an established set of HR policies and procedures that must be followed to establish structure within the company and the people who work there. However, many businesses are made up of staff members of different backgrounds and cultures whose individual needs must be catered to in order to ensure both their personal and professional growth.

This is one of the unenviable tasks of any HR professional. Making sure that established rules and regulations are followed, while also accommodating the personal preferences of each employee, can be difficult. However, this job is not an impossible one if the requisite skills for success in dealing with human capital have been adequately developed.

Here are a number of useful suggestions that will help make people stronger in their HR management activities:

  1. Relationship building: The HR department is essentially the central nervous system of an organization. Those in HR must interact with employees, managers and other high-level decision-makers. As such, it is critical to form relationships with each group of people. For example, The Employee Engagement Group, citing an HR engagement survey conducted by, wrote that 58 percent of workers have concerns about their benefits. In addition, 84 percent of managers are unsure of how to adequately measure the performance of their team members. Those in HR can be a valuable resource for both parties and must make themselves available in the event that questions or concerns arise.
  2. Develop multitasking skills: On any given day, an HR professional may feel that he or she is putting out multiple fires at the same time. This is why HR Daily Advisor wrote that adequately prioritizing tasks from least to greatest importance is a critical component of HR management. HR professionals will routinely wear multiple hats. However, the trick is to figure out which one to wear first.
  3. Create an employee engagement strategy: Most companies find that the more invested workers are in their roles, the better they perform. This also contributes to greater business growth as well. The PeopleFluent Blog wrote as much as 70 percent of the U.S. workforce is actively disengaged at work. Fifty percent go to their jobs, but find their tasks uninspiring, and 20 percent are actively disengaged, meaning they simply go through the motions. As a result, these kinds of feelings exhibited by employees can cost an organization between $450 billion and $550 billion annually. Many of these costs are directly related to training new workers to replace ones who have either quit or been terminated. HR professionals must carefully monitor workers, either directly or through their immediate superiors, to assess engagement levels and either help them improve their focus during their period of employment or take alternative measures to address the issue.


Attracting Talent: Stop Settling and Get the Best

Attracting Talent: Stop Settling and Get the Best

A company will only be successful if it hires the right people. As the economy continues to show signs of improvement and organizations increase their payrolls and bring on new staff members, the competition for these individuals is fierce. Now that the Great Recession has come to an end, the market has shifted into the hands of the job seeker. Many of those looking for work have their pick of opportunities to choose from.

Given that businesses are currently operating inside of an employee’s market when it comes to staffing, effectively managing human resources, particularly recruitment, is a priority. This means that strategies will be needed that work to funnel only the best and brightest candidates into an organization. According to a report from CNN Money, citing a survey conducted by Dice Holdings,60 percent of companiesplan to increase their hiring efforts in 2015.

Human resources professionals need to make sourcing and recruiting quality candidates a priority in 2015.

This means that those in corporate human resources must begin developing a plan to ensure that their company is staffed with the most talented individuals available, as this will become a key recruitment focus this year.

Companies to make quality of hires a priority
According to LinkedIn’s “2015 Global Recruiting Trends” report, quality of hire will be an important focus for organizations this year.

The survey revealed that 52 percent of companies will measure employee quality based on performance evaluation, 51 percent will track turnover and 40 percent will measure how satisfied hiring managers are with new workers.

The HR department must not only create a screening process that evaluates a candidate’s skill level, but they must also work to hire individuals who exhibit a willingness to grow within the organization and not look for outside opportunities. This means that human resources professionals must be diligent in their candidate screening and sourcing activities to ensure that everyone brought into the organization will provide value from the first day of employment and beyond.

Tips for Creating Strong Human Resources Policies and Procedures

Tips for Creating Strong Human Resources Policies and Procedures

The foundation of success for any company is the rules and regulations it establishes for its workers to follow. Without these guidelines in place, it’s difficult for staffers to advance personally and professionally. In addition, a company may find it challenging to achieve growth if its workforce doesn’t abide by procedural obligations expected of them. Both are critical components of an organization that flourishes and thrives in the marketplace.

Creating human resources policies and procedures isn’t a difficult task. However, it does require a considerable amount of discussion. A company will want to treat its workers fairly and give them a sense of autonomy that allows them to gain confidence in their assigned duties and flourish as professionals. The organization will still need to create certain ground rules that all must follow to maintain a sense of stability within the business.

According to, HR policies are put in place to govern the many and not the few. This means that every employee must abide by these rules or face penalties for committing infractions. These reprimands can be relatively minor in nature, such as a verbal warning or write-up, to something more severe, such as termination.

A number of components make up a strong HR policy. Here are some helpful suggestions for creating policies that should never be overlooked:

  1. Time and attendance: For any company to operate smoothly, rules need to be established that highlight the number of hours staffers are required to work in a given day and disciplinary protocols in the event these guidelines aren’t followed, Silicon India wrote. There may be some departmental exceptions established with respect to manpower and the staffing needs of the business, but as a general rule, attendance policies should apply to everyone.
  2. Code of conduct: Whether on- or off-site, when employees have clocked in and are ready for work, they should be expected to represent the company in the most favorable and professional way possible. listed this policy as arguably the most important. Staffers should be expected to carry themselves in a manner that will represent the company positively at all times.
  3. Salary and compensation: To maintain a competitive standing in the marketplace, all companies should have a clear understanding of what people need to be paid to encourage them to grow within the organization and not look for outside opportunities. This is one of the most important components of an HR strategy that will make both employee recruitment and retention easier.
  4. Vacation and leave: At some point, workers will need to be given time off and step away from their day-to-day tasks to recharge. Organizations should create fair policies in this area that allow people to take personal time away from their job duties and responsibilities and come back refreshed and ready to once again perform at a high level. There are a number of ways to create these guidelines, but it’s important to make sure that everyone earns time at the same rate to ensure fairness. 

Understanding Millennials from the HR Perspective

Understanding Millennials from the HR Perspective

A number of human resources management articles out there focus on how to handle the influx of millennials entering the workforce. Those in Gen Y have a vastly different approach to their careers and what they expect from either a current or potential employees than their predecessors. For HR representatives tasked with delivering the best quality candidates to an organization, it’s critical to have a deep understanding of millennials.

This knowledge is necessary for recruiting purposes, but also in developing a company culture that will not only be attractive to millennials, but encourage them to stay and grow professionally within the organization as well. HR management can be difficult if the generational differences aren’t understood, especially as it relates to being knowledgeable of what the members of this group feel they need in order to both successful and productive in their job roles and responsibilities.

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9 Tips to Help Employers Avoid Violations of the Fair Labor Standards Act

9 Tips to Help Employers Avoid Violations of the Fair Labor Standards Act

Courtesy of Gary J. Jaburg of Jaburg|Wilk Attorneys at Law 

Wage and hour law is complex.  Compliance is challenging, and although a company may have systems and policies in place, a manager or supervisor can put the company at risk for unpaid wages if they are not familiar with all of the requirements of the Fair Labor Standards Act (“FLSA”). There can be ambiguity as to what time is compensable.  For example, when does a work day begin and end?  Does an employee need to be paid for traveling to work?  Determining when an employee is “off the clock” is not as straight forward as many employers may think.  Applying common sense and doing what “seems right” often leads to wage and hour violations.

In 2015, many workers are digitally connected to their workplace 24/7, which has created enormous potential for wage and hour violations.  If an employer requires or allows employees to work, the employee must be paid for all of that time.  This means that even if the employer did not ask the employee to work, the employer may still be required to compensate the employee, so long as (1) the employer knows or has reason to believe that the employee is continuing to work, and (2) the employer is benefiting from the work being done.  This is true regardless of where the work is performed.  

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4 Best Practices When Terminating Employees

4 Best Practices When Terminating Employees

Terminating the employment of a staff member is never an easy process. It can be difficult to communicate to someone that his or her services are no longer needed. In many cases, this will be an emotional time for the employee. Gauging their reaction can be difficult.

Terminating an employee can be a difficult situation and needs to be handled properly.

“As a decision-maker, it may be wise to put yourself in the person’s shoes and show empathy when having the conversation.”

However, terminations are a part of business and they have to be handled with the highest degree of professionalism. As such, here are some helpful tips that can make the process of firing run smoothly:

1.  Team up: Predicting how someone will react to being terminated is nearly impossible. The hope is that all parties involved can maintain a sense of professional behavior during a difficult conversation such as this. However, to make things easier, the Employers Resource Council blog suggests that any person making the decision to terminate a worker should meet with the employee face-to-face, along with another member of the management team. This second individual can serve as a witness to ensure that the situation is handled in accordance with company guidelines, while also acting as a buffer to ensure that order is maintained while the termination conversation takes place.

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Minimum Wage Increases for 2015

Minimum Wage Increases for 2015

Federal Minimum Wage
The current federal minimum wage is $7.25 per hour, however some states have a higher minimum wage rate. When the state minimum wage rate is higher than the federal rate, workers are paid the higher amount.

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Arizona Minimum Wage Increase in 2015

Arizona Minimum Wage Increase in 2015

Arizona’s Minimum Wage Increases in 2015

Courtesy of Jaburg and Wilk Attorneys at Law

 By: Gary J. Jaburg, Esq.
As of January 1, 2015, the minimum wage in Arizona increases to $8.05 per hour. In 2006, the Raise the Arizona Minimum Wage for Working Arizonans Act became law.  In part it provides for annual increases in the Arizona’s minimum wage.  Increases to Arizona’s minimum wage are based on cost of living increases using the Department of Labor, Consumer Price Index of All Urban Consumers (CPI-U). 
Arizona’s rate is .80 cents per hour higher than the federal minimum wage and employers are required to pay the higher of the two wage rates.
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FMLA: Three Important Components

FMLA: Three Important Components

Three Important Components of the Family Medical Leave Act

By Kraig Marton and Jeffrey Silence

Article Courtesy of Jaburg and Wilk Attorneys at Law

In 1993, President Bill Clinton signed the Family and Medical Leave Act (“FMLA”), which allows employees time off from their job to bond with their children, care for ill family members, or recover from their own serious health problems — all without fear of losing their job.   The FMLA entitles employees to a total of 12 weeks of unpaid leave during a 12-month period for any of the following:

  • the birth of a child and to care for the child after birth;
  • the placement of a child with the employee for adoption or foster care;
  • to care for the spouse, child, or parent of the employee who has a serious health condition;
  • the employee’s own serious health condition; and

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How Does Arizona Same Sex Marriage Impact HR?

How Does Arizona Same Sex Marriage Impact HR?

What changes do Arizona employers, and their HR professionals need to be aware of?

By: Kraig J. Marton

On Friday October 17, 2014, same sex marriages became legal in Arizona. What are the changes that Arizona employers, and their HR professionals, need to be aware of?
1. The definition of spouse in employee manuals and handbooks. If a generic definition, such as “spouse” is used, there should not be a need to update. However, if a specific definition was used such as “wife” or “husband” the employee manual may need to be revised.
2. Family Medical Leave Act (FMLA) now covers same sex spouses. Accordingly, FMLA policy and notices may require modification. For private employers, FMLA still does not cover domestic partners, only married couples, and FMLA only applies to employers with 50 or more employees. 
3. Insurance coverage needs to be offered to all qualifying employees and dependents. This includes all legally married couples. The marriage will be a qualifying life event and will trigger an open enrollment.  Insurance carriers may require proof of marriage.
4. Federal and state tax forms may be updated to reflect the same sex couple’s new filing status.
5. Beneficiary forms for pension plans and life insurance may need to be changed to note “spouse” designation rather than “other”. Pension plan records need to be updated to show status as married and any authorization that require spousal consent will need the new spouse’s signature. 
6. Any benefit that the company extends to heterosexual married couples should be extended to same-sex married couples. 
In summary, with the advent of lawful sex marriages, every person involved in HR should take a careful look at how this change affects their policies. If legal assistance is needed to review policies, our employment lawyers would be glad to help.
This article is not intended to provide legal advice and only relates to Arizona law. It does not consider the scope of laws in states other than Arizona. Always consult an attorney for legal advice for your particular situation.

Kraig J. Marton is an employment attorney that heads the employment law department at the Phoenix law firm of Jaburg Wilk. He assists employers in compliance with Arizona labor laws. Kraig can be reached at or 602.248.1017.

For more information, visit Jaburg Wilk’s Employment Law Services Webpage.


2014 Arizona Individual Tax Credits

2014 Arizona Individual Tax Credits

As the new year approaches, don’t forget to take advantage of the individual tax credits available to you.  In order to recognize the full credit in 2014, just be sure to donate this calendar year and as soon as possible as some funds, like the Military Family Relief Fund, have a annual cap.  Below you will find a list of credits, their limits and a short descriptions.  Also, feel free to visit for more information.  This information is courtesy of Mackenzie J. Rentschler, CPA, of
Rauch, Hermanson, Everroad & Rentschler, Ltd., Certified Public Accountants in Scottsdale, AZ 85260.

This is not tax advice.  Please consult with your tax advisor before making any decisions.  

– Working Poor Tax Credit ($200 Single / $400 MFJ) – Payments to qualified charities on the ADOR list, updated annually.

– Qualifying Foster Care Charitable Organization ($200 Single / $400 MFJ) – Payments to qualifying foster care charitable organization on the ADOR list, updated annually.

– Public School Tax Credit ($200 Single / $400 MFJ) – amounts paid to support public school extra-curricular activities.

– Private School Tuition Tax Credit ($528 Single / $1,056 MFJ) – amounts paid to a qualified tuition organization on the ADOR list, updated annually.

– Switcher Credit ($525 Single / $1,050 MFJ), aka Overflow or PLUS – amounts paid to qualifying organizations and will award the scholarship money to students who are switching from a public school to a private school, entering kindergarten, are a child of an active duty military parent stationed in AZ, or have received a scholarship from a corporate scholarship fund. This credit is allowed only if you have allowed maximized the original Private School Tuition Tax Credit.

– Military Family Relief Fund ($200 Single / $400 MFJ) – Donations to the fund will qualify for the credit if the total amount donated to the fund during the calendar year has not exceeded one million dollars. For more information on making a donation and whether or not they have met the annual limitation, contact A donation form is attached.

FSA “Use It Or Lose It” Rule Modified

FSA & "Use It Or Lose It& " Rule Modified

On October 31, 2013, the US Treasury released Notice 2013-71 which modifies the long-standing “use it or lose it rule” for Health Flexible Spending Arrangements (FSAs). For the first time, the Employer has an option to allow participants to carryover up to $500 of unused funds. Here are a few of the notice provisions:

-Employers may amend their plan to allow participants to carry over up to $500 of unused funds from their Health FSA remaining at the end of the plan year to the immediately following plan year.
-The carryover of up to $500 does not count against the annual limit of FSA salary reductions.
-FSA Plan must be amended to allow for the carryover option
-Plan cannot offer the grace period and the carryover option, you may choose one or the other (employers are not required to allow either option).
-This ruling does not impact your current plan year end run out period.
-At this point, we do not know exactly how the software systems will handle the availability of the carryover funds in the new plan year.
-Only applies to Health Flexible Spending, including Limited Purpose. Does not apply to the Dependent Care Benefit.

For more information, contact your Payroll Expert or visit:

Affordable Care Act Updates

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