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California Employers May Sue for Online Defamation

Posted By Editor, Laurie, Wednesday, March 21, 2018
Updated: Wednesday, March 21, 2018

Contributed by James J. McDonald, Jr., SPHR, SHRM-SCP, Fisher & Phillips LLP.

The situation is a familiar one. Disgruntled current or former employees leave negative and harmful comments about their employer on online workplace review websites such as Glassdoor or Vault, or on customer review sites such as Yelp. Until recently, employers had little recourse.

Website operators are generally immune from liability under the federal Communications Decency Act of 1996, and they historically have objected strenuously, on First Amendment and privacy grounds, to identifying people who post defamatory comments anonymously on their websites.

>>> Read the article here.

Tags:  HR law  HR Legislation  workplace law 

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Background Checks in California are Different than the Rest of the United States

Posted By Editor, Laurie, Thursday, March 2, 2017
Updated: Thursday, March 2, 2017

Contributed by Attorney Lester Rosen, Founder and CEO of Employment Screening Resources® (ESR)

Speaker session: Avoiding Lawsuits and Bad Hires with Effective Background Screening March 6th - 3:00p

When it comes to background checks and due diligence, California has unique rules that go beyond the other 49 states and the federal Fair Credit Reporting Act (FCRA), the national law that regulates background checks. While California employers also need to follow the FCRA, there are additional “only in California” rules that employers must follow to the letter of the law.  A failure to dot every “i” or cross every “t’” allows applicants to sue for up to $10,000 regardless of damages.

And it’s not just state rules that employers need to understand.  Cities and counties have passed their own version of “Ban the Box” rules that also significantly impact how employers do background checks.  San Francisco and Los Angles are two large counties that have special rules for when and how criminal records can be considered.

Here are a few key areas that employers need to understand:

  1. California Special Rules and Forms:  Although there have been cases challenging the constitutionality of some California rules, the California Investigative Consumer Reporting Agencies (ICRA) Act sets out some very specific rules that differ substantially from the national rules.  In California, for example, very specific language is needed on the front of a background report as well as in the release and authorization signed by a consumer.  California requires that a screening firm be identified along with their phone number.  California also has stricter rules about what goes into an agreement between a screening firm and an employer. California mandates the use of a Spanish language form in certain situations.

  2. Privacy and Offshoring: California passed a first in the nation offshoring law that applies specifically to background checks, with a number of requirements imposed on both employers and background firms.

  3. Expungements: California provides significant protection to ex-offenders who committed crimes, including felonies, when it comes to job hunting and what employers can legally discover or use.  The law prohibits an employer from asking about, seeking, or utilizing criminal convictions that have been judicially set aside.  Employers violating the new prohibitions can face civil penalties and even misdemeanor criminal charges if done intentionally. It also allows a convicted person to get a case expunged sooner. 

  4. Credit Reports: California regulates the use of credit report checks of job applicants and current employees by employers for employment purposes in very specific ways.

  5. Social Media Passwords:  California consumers are protected from revealing their social media passwords.

Despite all of the laws and special rules in California, “due diligence” through background checks is still mission critical for employers in the Golden State. Employees are typically a firm’s greatest investment and largest cost, and each hire also represents a large potential risk. Every employer has an obligation to exercise due diligence in hiring since an employer that hires someone it either knew – or should have known through reasonable screening – was dangerous, unfit, or unqualified for the work can be sued for negligent hiring.

The bottom line: California employers must maintain compliance with a whole different set of rules than the rest of the country when conducting due diligence background checks.

Lester S. Rosen is an attorney at law and CEO of  Employment Screening Resources, an accredited national background screening company located in California. He is the author of The Safe Hiring Manual and The Safe Hiring Audit. Lester is also a consultant, writer, and frequent presenter nationwide on pre-employment screening, safe hiring and legal compliance issues. He has qualified and testified in the California, Florida and Arkansas Superior Courts as an expert witness on issues surrounding safe hiring and due diligence. He has been a presenter for the past eight years at the SHRM National Conference. Attorney Rosen will cover more at his session, Avoiding Lawsuits and Bad Hires with Effective Background Screening, at HR West 2017 this Monday.


Tags:  employee background screening  employment law  employment lawyer  HR law  HR West 2017 

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Legalizing Marijuana: What's an Employer to do?

Posted By Editor, Wednesday, November 2, 2016

Contributed by Becky Barton

These days it’s difficult to avoid the election mania covered by the various media outlets. Given the major spotlight on the presidential race, you may not know that the potential decriminalization of marijuana will be on the ballot in several states.

California, Arizona, Maine, Massachusetts and Nevada will all weigh in on legalized marijuana for recreational use (also known as “adult use” and “non-medical use”) where it is currently approved for medical use only. Another 3 states (Arkansas, Florida, and North Dakota) will decide on the future of cannabis for medical use in their states.

Supporters of the ballot measures see this as a boon to the states’ economies via increased taxes and job growth for cannabusiness people. We have seen 25 states and the District of Columbia legalize marijuana in some fashion, making a continued trend of legalization highly likely.

So what does this mean for business owners and employers? Marijuana remains illegal under federal law and the state-by-state variations make this particularly confusing. For example, within the subset of those states approved for recreational use, the amount an individual can personally carry varies.  As an employer, particularly a multi-state employer, these variations can be an administrative and enforcement nightmare.

Or do they? After all, alcohol is a mind and behavior altering substance that’s been legal for over 80 years and we seem to manage that in the workplace, right? Wouldn’t this be treated similarly? Well, it depends. Many laws clearly state that employers don't have to accommodate medical marijuana use during work hours or on company property while other states require reasonable accommodations for workers with disabilities (specifically as it relates to drug testing and adverse action).

The key is to know what is required by the states in which you operate, create an employment policy that complies with state law and enforce it consistently amongst employees of similar work groups.

The Bottom Line: Work with an HR consultant or an employment law attorney to navigate these unchartered waters. They should be watching how these new laws are interpreted by the courts and have your back should your policy need updating.


Becky Barton is the founder of People415, a San Francisco-based Human Resource Consultancy Firm helping companies navigate every stage of their growth.

Tags:  behavior  company culture  employee  employee communication  employee health and wellness  employee relations  Employee Training  employee wellness  healthcare expenditures  hr  HR Communication  HR law  HR Legislation  Human resources management. HR Leadership  law  leadership  management  marijuana  Policies  workforce 

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Managing Pokemon GO "perils at the office" via a lawyer's perspective!

Posted By Laurie A. Pehar Borsh, Wednesday, July 20, 2016

Companies are reporting a dramatic new trend: employees and others drawn into Pokemon GO (the new augmented reality game) at the workplace. Given the novelty of the phenomenon and its unique combination of virtual and real world elements, bosses and managers run the risk of being unprepared to manage game play as well as resulting legal Pokemon-potholes. According to Philippe WeissChicago-based lawyer and managing director of Seyfarth Shaw at Work, a few of the bigger concerns and emerging risk areas are:

1.   Facing and Responding to Intruder-Players on Company Property
 (not to mention Pikachus, Zubats and Pidgeys). Businesses face security, legal and safety risks from public players unfamiliar with your facilities. Distracted players have found themselves locked into warehouses and cemeteries after hours or trampling near sensitive R&D areas. The possibility of a painful death by Pokemon play – and by related lawsuits – is not simply hypothetical: already one agricultural business learned that an intrepid player had nearly fallen down one of the company's unused grain elevators while attempting to capture a screeching Golbat.

Risks due to employee play are equally real: one actuarial client reported that a staff member leaned so far out a window (in an attempt to capture a rarely appearing Pokemon in a park below) that he had to be hauled back in by a maintenance manager who thought he may have been intending to jump.

Weiss' clients have also reported employees asking for temporary desk-space reassignments closer to windows simply so they could have better connectivity to a Poke Stop or Pokemon GO Gym (both game components/attractions) that were located nearby.

2.   Players' Non-Stop Use of Smart Phones. 
If your Pokemon-addicted employees are using company smartphones, chances are they have already violated (by several orders of magnitude) any applicable "limited personal use" restriction contained in your electronic communications policy. Moreover, if any employees have been recording any of their Pokemon GO play at the office, they may have created potential privacy violations---all on your company-sanctioned equipment.

3.   "Time Flies as Fast as a Pokemon Pidgeotto” when you're playing.  One of Weiss' clients reported, that in one week, morning tardies were up over 10% among certain groups of employees and that the length of employee absences for breaks and lunches are noticeably extending, and all due to Pokemon GO play. Employees may lose their sense of time (as well as their sense of reality, in terms of career preservation) once immersed in such a clearly addictive augmented reality game.

One media company received complaints after a salesperson started a customer call by saying, “Sorry about the delay in getting back to you, I was catching a Caterpie!  You know – Pokeman GO comes first!" 

Given the growing risks, Mr. Weiss has outlined the following valuable strategies to safely manage Pokemon GO perils in the workplace:

Prioritize Performance over Pokemon.

  • Train on Pokemon GO Protocols. 
  • Start watching your employees' timeliness and attendance with greater attention than usual in the coming weeks. Follow-up on even small delays in work/task completion while the Pokemon GO craze is upon us.
  • Note any employees walking around with gazes fixed on their smartphone screens (and exhibiting an accompanying semi-spaced-out demeanor).
  • Train your managers to know when and how to safely tell employees: "Pokemon STOP!” (And train them not to set the wrong example, themselves, by playing Pokemon GO during work time).
  • Give security people and managers simple scripts to use when they encounter any wandering/errant players. The key is to "Respectfully Reroute” players, quickly and safely.

Patrol Possible Player Pathways (especially if you operate any outdoor facilities).

  • Regularly check all doors, gates and access ways to unauthorized areas to confirm that they are effectively secure. Do not leave any hazards exposed. You don't want distracted players falling into a floorboard gap followed by a 30 foot drop to the sub-basement.

Use the Power of Your Policies!

  • Remind everyone at work about your electronic device policy and ask that smart phones be turned off at all meetings. Don't cede your power to the Pokemon.

Consider the Potential Poke-Payoff.

  • On the plus side, if your store or business is near (or is itself) a Poke Stop or Pokemon Gym, you most likely have already seen increased foot traffic. Businesses can also purchase an in-game module called a "lure" to attract Pokemon (and thus, more players/potential customers) for a 1/2 hour period.  However, be ready for the possible resulting Poke-mayhem. If that happens, take steps to ensure that your own employees continue to focus on their work.

According to Weiss, “the phenomenon is here, but the need to play Pokemon GO should never mean that Performance STOPS!”

What's your take on Pokemon Go play in the office? 

Tags:  HR law  HR management  Pokemon GO  workplace safety 

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Complying with California Disability Laws - Don't Leave it Just to HR or Risk the Consequences

Posted By Laurie A. Pehar Borsh, Tuesday, March 29, 2016

By Joe Wilson

If an injured, sick, or mentally ill employee is terminated, demoted, written up or otherwise has adverse action taken against them, they may bring disability based claims. This includes disability discrimination, failure to engage in the interactive process, and failure to provide reasonable accommodations.  All managers, and not just human resources, need to be aware of an employer's duties under California law.  

First, managers must know that California law is broad, all encompassing, and meant to protect employees.  A disability is a physical or mental condition that limits a major life activity.  Major life activities include walking, eating, breathing, working, and the law states that it is meant to be broadly construed.

Employees with temporary conditions, such as a broken wrist, are also protected. Employees who have no problems, but are perceived to have a disability or mental condition are also protected.  You can't simply fire someone because you think they are crazy.  Well, you can, but if you do you'll be paying both them and their attorney a large amount for doing so.  

When an employee has a qualifying disability, medical condition or mental condition, employers must make reasonable accommodations.  Reasonable accommodations can be anything, including time off, shift changes, and transfer to a different position.  The big factor is whether it is reasonable, and courts look to whether a company has the resources to provide the accommodation.  The company's defense to failing to provide reasonable accommodations is that it imposes an undue burden on them.  That is a high threshold to meet, and employers cannot use that defense unless they have first engaged in the interactive process.  

To find out what type of accommodation needs to be made, employers are required to engage in the interactive process.  This is an informal process, where the employer simply needs to find out what problems the employee has, and what type of accommodation they may need.  Employers do not have to simply acquiesce to the employee's requests, they can offer alternatives, but the important aspect is that employers must engage.   

It is surprising how often I hear about a manager who knows their employee to be sick, hurt or otherwise protected under California disability laws, and instead of engaging in the interactive process or talking to HR, they take some type of adverse action. Don't let your managers be ignorant.  At the end of the day it could cost the company a significant amount of money and goodwill.  

About the Author
Joseph C. Wilson is the founding partner of Curiale Wilson LLP. His practice is focused on employment defense litigation, including misclassification, wage and hour claims, discrimination, wrongful termination, harassment, and California Private Attorney General Act (PAGA) actions. In his practice, Joe has successfully represented clients in both state and federal courts, before the California Labor commissioner, the National Labor Relations Board, and in arbitration. Joe is licensed to practice before all the Courts of the State of California, the United States District Courts for the Northern and Central Districts, and the Ninth Circuit Court of Appeals. 


Tags:  california  compliance  disability laws  HR  HR blog  HR Law  HR management  human resources  NCHRA 

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