Supplemental materials for LEAP 2025 session What Keeps HR Up at Night: Strategies to Help You Sleep Well
The ethics of our profession require HR practitioners and leaders to behave in ways that are beyond reproach when it comes to carrying out HR duties and in their personal conduct at work. That’s especially true when it comes to administering anti-bias and anti-harassment policies.
When those who are supposed to guarantee a bias-free work environment are the source of bias and harassment, that is a potent source of legal risk. Before a judge or jury, nothing plays worse than an HR pro whose attitude or behavior screams, “Do as I say, not as I do.”
Recent case: Shana worked for Marathon Petroleum as an HR supervisor. Her role included providing comprehensive HR support to employees and conducting investigations. She was also responsible for advising employees on Marathon’s workplace policies, including its harassment policy.
When the company held three leadership team conferences, Shana attended. After meeting up for post-conference drinks, Shana apparently imbibed too much. The next morning, she texted one of her co-workers a lewd comment. More drinking, profanity and “off-color” jokes followed at the other meetings—all behavior prohibited by Marathon’s harassment policies.
One of the attendees later filed a complaint about Shana’s conduct.
A Marathon internal investigation determined that Shana had violated company policy and should be fired. She resigned and then sued, alleging that one of the other attendees once asked her a risqué question about the color of her pubic hair.
The court tossed out Shana’s lawsuit, noting, “It is undisputed that multiple employees reported … that [Shana] made repeated, sexualized comments. … Multiple employees reported that [her] language was inappropriate or made them feel uncomfortable. Several employees also reported that working relationships had been compromised or that the HR team had no credibility due to [Shana’s] behavior.”
In addition, the court stated that Shana could not prove that she was satisfactorily performing her job when she resigned in lieu of being fired. She had violated the very policies she was supposed to enforce. Plus, she could point to no one treated more favorably than she was. (Troyer v. Marathon Petroleum, DC CO, 2024)
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Wage-and-Hour Pitfalls: Avoiding Common Employer Mistakes
Download Audit: Test Your Overtime Compliance.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Wage-and-Hour Pitfalls: Avoiding Common Employer Mistakes
Many states and municipalities have wage-and-hour laws that go beyond the mandates of the federal Fair Labor Standards Act. The FLSA sets the floor for wage-and-hour rules, but states and cities are free to set standards that are more generous to employees. For example, the FLSA doesn’t require paying employees weekly, but some states do.
Recent case: Southwest Airlines employs baggage and cargo handlers at each airport where it operates. No matter where they work, those employees are all paid every two weeks.
Now, two Southwest baggage handlers have sued for wage-and-hour violations, and they want to make it a class-action lawsuit representing all similarly situated baggage handlers.
They claim that because they’re paid every two weeks, Southwest has failed to pay them on time. Why? Because the state of New York, where they work, requires that all manual workers be paid weekly. The law states that manual workers must be paid “at least once a week, not more than a week” after the work is done. The law defines manual workers as those who spend more than a quarter of their time performing physical tasks. Other workers in New York can be paid twice per month.
The lawsuit seeks damages of $100 million. If the court approves class-action status, the potential damages will rise. (Strain, et al., v. Southwest Airlines, ED NY, 2025)
Advice: Ensure your payroll department (or your payroll processor) is familiar with wage-and-hour requirements wherever you operate.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Staying Ahead of Immigration Audits and Investigations
Download Acceptable I-9 Documents.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Staying Ahead of Immigration Audits and Investigations
Download How to Manage I-9 Compliance.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Avoiding Costly Misclassification Mistakes: Employee vs. Independent Contractor
Download Making the Classification Call: Employee or Independent Contractor?
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Avoiding Costly Misclassification Mistakes: Employee vs. Independent Contractor
The Department of Labor has read the fine print for you on employment contracts, and it doesn’t like what it’s seeing. It’s identified seven fine-print provisions in employment contracts that it believes violate the Fair Labor Standards Act and the Occupational Safety and Health Act. Would your employment contracts and job applications stand up to a DOL investigation?
1. Contract provisions requiring employees to waive statutory protections
The FLSA is remedial legislation, which means employees can’t waive away their rights. The DOL has observed the following:
2. Contract provisions requiring employees to agree they are independent contractors
Employees can’t agree to be called independent contractors, even if they want to. Whether a worker is an employee or an independent contractor is based on whether you have a right to control their wages and working conditions. Actual control isn’t necessary.
In January, the DOL released final worker status regulations. And there are Memorandums of Understanding all over the place entitling other federal agencies to tip off the DOL to any questionable employment practices they happen upon. The IRS will be equally unamused if it sees contract provisions calling workers independent contractors.
3. Indemnification-type provisions and related counterclaims
It’s a neat trick, but no, you can’t make employees reimburse you for your FLSA violations. Indemnification includes offsetting damages against employees’ pay.
4. “Loser pays” provisions
Here’s how the FLSA is structured:
Contract provisions altering this statutory arrangement are void.
5. Stay-or-pay provisions
The DOL never hinted it was interested in stay-or-pay provisions, unlike the CFPB and the NLRB. But it is now, and the FLSA contains an interesting twist: You can’t require employees to kick back wages when the kickbacks would bring their pay to below the minimum wage or cut into their overtime pay. Rather, the FLSA requires wages to be paid free and clear.
6. Confidentiality, nondisclosure and nondisparagement provisions
You can insist on some decorum during working hours, but on their own time, employees can say mean things about you on social media or face-to-face among friends or even potential employees, and there isn’t much you can do about it. In addition, employees don’t need your permission to speak to a government investigator before speaking to you or never speaking to you.
7. Company policies requiring employees to report safety concerns to you before contacting the authorities
You can’t retaliate against employees for reporting safety concerns or other violations to OSHA before reporting them to you.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Avoiding Costly Misclassification Mistakes: Employee vs. Independent Contractor
One benefit of engaging independent contractors to perform work is that contractors don’t count as employees for purposes of complying with laws such as Title VII of the Civil Rights Act. But, just calling someone an independent contractor doesn’t necessarily mean she is one. She might really be an employee.
Recent case: Melanie worked for a health-care service that operated out of the married owners’ home. She complained to the wife that the husband created a sexually hostile work environment by watching pornography during her office shifts. After her third complaint, Melanie was fired. She sued, alleging sexual harassment.
The owners asked the court to toss out the case because they didn’t have 15 employees—the minimum required for Title VII to apply. They claimed all 50 of their staff members were independent contractors, so they weren’t covered.
The 5th Circuit rejected their claim after analyzing whether the workers were employees or contractors. Factors the court considered were that the owners could hire and fire the workers and set their work schedules. They controlled the details of the work was to be performed. The workers underwent orientation and had to pass a test on company policies. They received annual reviews. The workers signed contracts acknowledging that they were independent contractors, but the court said that was irrelevant.
It declared them employees, putting the company over the 15-employee count required to comply with Title VII. (Mason, et al., v. Helping Our Seniors, WD TX, 2023)
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Protecting Your Business Interest When Employer Agreements Are Under Attack
Download 17 Ways to Protect Company Trade Secrets.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Power of the NLRB: Protected Concerted Activities, Handbooks and Organizing
Download The National Labor Relations Act, Concerted Activity and Your Handbook.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
