Monthly Archives: February 2013

I’ll be at The 16th Annual Employee Benefits Symposium — Join me!


I’m excited to announce that on March 22, 2013 I will be presenting at The 16th Annual Employee Benefits Symposium at the DoubleTree in San Jose. This incredible all-day conference is the premier source of employee benefits information for Executives, HR and Benefit Professionals, and all plan fiduciaries. There are three education tracks – from “benefits 101” to a track geared to the high-level benefits professional. Addressing the unfolding Healthcare Reform law, there is an ACA track dedicated to unraveling the law and what it means to employers. The benefits speakers are some of the most knowledgeable in the industry.
I’ll be giving an employment law update during lunch, and then in the afternoon, I’ll be moderating a panel of HR experts – practitioners, lawyers and consultants—who will be discussing the Seven Mistakes That Employers Continue to Make in Employment Law. After the panel, there is a fun reception where participants can meet the speakers and their colleagues.
I highly recommend this conference! Here is the link:

Love is in the air! Is that good?


Happy Valentine’s Day!

Chances are that at least a few of the readers of this entry are having an office romance – or had one – or have employees “so involved.” I read in the Dallas Business Journal this week that 59% percent of respondents to a recent survey by had participated in an on-the-job romance, and 63% of those who had been involved with a co-worker said they would be willing to do so again.

So, is this bad, or good? Anyone who has sat through California’s mandatory sexual harassment prevention training for supervisors knows that office romances can become very, very bad for the employer. It would seem then, that this article should admonish employers to prohibit office relationships, right? Classic lawyer response:  It depends.

It can be a good practice to prohibit relationships between people who have a reporting relationship to try to avoid the classic “if you sleep with me, great things will happen for you here at the company” claims. But some employees bristle at being told what they can or cannot do on their personal time. And some employers don’t want to take that position, either.

I also don’t often suggest a ban for peer relationships. Your employees spend a huge portion of their lives at work. Now that they’re no longer in high school or college, where are they supposed to meet potential partners? Often, it is at work. And having a policy that prohibits office romances doesn’t mean they won’t happen, it just means the parties will try to hide it. And it’s usually the hidden office romances that are the problem.

The key then, is to create and publicize policies that help everyone know what the rules are and how all employees are protected from harassment.

For example, when an employer learns of a relationship, I often recommend that the employees involved sign a “love contract.” The purpose of the document is for each employee to separately affirm that the relationship is consensual. The document also reminds employees what is expected of them in the workplace. Basically, this means clear instructions that no part of their relationship should be apparent in the workplace — good (touching) or bad (arguing). Finally, the employees are reminded, in writing, of the company’s anti-harassment policy.

While such a policy can’t guarantee that an employer won’t face a harassment lawsuit after an office romance goes sour, the process of having the employees sign the love contract may help reduce or minimize some risks.

This is one of those topics that can quickly become a long article, rather than a blog entry – each workplace is unique and the employer may have different views on how it wants to approach the office romance question. At a minimum, employers should create policies and train employees to follow the policies.

All of the employment law partners at McPharlin Sprinkles & Thomas LLP conduct effective, interactive and actually enjoyable harassment prevention training programs that satisfy California’s AB 1825/Govt Code § 12950.1. The training must be conducted every two years. Please contact us if you’d like to schedule one!

I’ll be speaking at HR West – Join me!

Button_FINAL_A_1I’ll be presenting at HR West 2013 in April! My topic is “Conducting an Employee Relations Self Audit”. HR West is the largest gathering of HR professionals in Northern California — bringing together more than 600 practitioners for unparalleled networking and excellent education. Join me at the conference! Visit for complete details.

HR West brings you…

• World-renowned keynotes: Gautum Mukunda, Paul Alofs, Shari Harley
• Over 90 concurrent sessions
• Up to 17.25 recertification credits toward your HR certification
• Executive education led by Cort Worthington, Haas School of Business
• Pre-conference HR Hack. Put your ‘hacker’ mind to work on HR issues
• Award-winning HR certification courses the weekend before

I look forward to seeing you there.

So there’s free speech and then there’s Extra Special Free Speech!

file0001719225336Another case that has provoked interest in audiences for my 2013 Employment Law Updates is Ralph’s Grocery Co. v. UFCW Union Local 8. In this case, the California Supreme Court held that labor unions can picket on private property.

In Ralph’s, a Sacramento-area warehouse grocery store employed workers not represented by a labor union. UFCW Union Local 8 began picketing the store’s only entrance to encourage people not to shop at the store. Ralph’s asked the union to stop and it refused. Ralph’s told the police that the union was trespassing on private property and asked the police to stop the picketing. The police refused to do so without a court order. Ralph’s sought a court order and the end result is this case.

The reason the case is so interesting is that it gives labor union speech more protection than other speech – such as picketing to object to genetically modified foods, or to ask for donations to support a cause.

Before this case, labor unions already had a special exemption under California’s trespass prohibitions for lawful union activities. Union agents have a right to access private property if union members are on-site and working pursuant to a valid collective bargaining agreement or other union agreement for that site. Agents have a right to come onto the property, police the union agreement, prepare steward’s reports, and conduct workplace safety inspections. This exception to the general trespass rule arises, however, only if there is a valid union agreement in place.

In Ralph’s, the Court expanded union rights on private property. The Court agreed that the area in front of the store was not a “public forum” (a public area where free speech is usually protected) and there was no labor agreement in place. Usually, this would mean that the union would not be entitled to the constitutional free speech protection. But the Court held that the activity was entitled protection under California labor laws that do not allow a court to enjoin peaceful labor picketing.

A lower court found that these labor laws made union speech “more protected speech” than other speech – about your fundraising efforts, about your church, about girl scout cookies – which seems to be against the very nature of the free speech and equal protection guarantees in the U.S. Constitution. But the California Supreme Court found that labor-related speech can be afforded extra protection without violating the U.S. Constitution. Based on this ruling, a labor union may “peacefully” picket on private property without the owner’s permission. But get permission to sell those cookies.