How to Conduct An Internal Form I-9 Audit

When conducting your internal I-9 form audit start off by outlining your procedure and how you plan to conduct the audit

For Section Two of the I-9 form you’ll need to ensure one document from List A is included and completed or one document from List B and one from List C are listed and completed

When conducting your internal audit, Section Three of the I-9 form deals with reverification which only applies if evidence of employment authorization (List A or List C document) presented in Section two expires

The best way to correct the Form I-9 is to line through the portions of the form that contain incorrect information (preferably in a contrasting ink color), then enter the correct information, initial and date your correction


Dealing with I-9 Forms can be tricky. It’s definitely not the easiest part of your day, and it requires a lot of attention to detail. No one even wants to talk about the possibility of getting audited for your I-9 forms. But what if I told you it was actually pretty simple? In this blog, I am going to list off the six steps you need to conduct your own internal Form I-9 audit. So if you ever hear ICE (Immigration and Customs Enforcement) knocking on your door, you’ll be ready!

Step One: Outline Your Procedure

When conducting your internal I-9 form audit start off by outlining your procedure and how you plan to conduct the audit. Your internal audit should concentrate on key problems that frequently arise during the completion of the I-9 form.

Conducting the Internal Audit – When preparing to conduct your internal audit be sure you account for the need of the following criteria:

  • Unbiased – Make sure the selection of Forms I-9 for an internal audit is not based on the employee’s race or nation origin. Either audit all forms, or audit a truly random sample of forms. An organization may not selectively choose which forms to audit.
  • Annual – This provides a defense against allegations of targeted internal Form I-9 auditing. Internal audit processes should mimic government compliance audit processes. This not only verifies Forms I-9 on file, but it also trains the Human Resources Department to prepare for actual government compliance audits.
  • Consistent – Either keep copies of all I-9 verification documents, or none of them. If your records are not complete, then you must either obtain the missing documents, or dispose of all collected verification documents.
  • Knowledgeable – Designate an “I-9 Officer” or Company Representative, responsible for knowing and applying Form I-9 rules. The authorized I-9 Officer should achieve the following:
    • Become well-versed on the correct completion of the Form I-9
    • Develop and enforce a compliant program
    • Create and implement internal training procedures
    • Conduct regular internal audits
    • Have a plan of action in the event of an ICE audit

Step Two: Auditing Section One of the I-9 Form

You’ll need to make sure you’re gathering all of the information below to complete step two, auditing Section One of the I-9 form.

Employee Information

  • Employee first and last names completed
  • Maiden name or other names if it is applicable; “N/A” for “Other Names Used” if it does not apply
  • Full address fields completed – No PO boxes allowed
  • Date of birth in mm/dd/yyyy format
  • Social Security Number (optional); Social Security Number mandatory for
  • E-Verify participants

Citizenship/Immigration Status

  • Status is selected (not more than one)
  • Lawful Permanent Resident – including alien registration number
  • If employee is not a permanent resident but has authorization to work in the United States, the alien number or admission number must be included and correctly stated
  • Expiration date of employment authorization is included and correctly stated

Employee Attestation

  • Employee’s signature
  • Date of employee’s execution of form
  • Form I-9 signed on the first day of employment or the period between the job being accepted by the employee and the first day of employment
  • Preparer/Translator Certification
  • Signature of preparer/translator if applicable
  • Name of preparer/translator correctly stated
  • Address of preparer/translator correctly stated

Step Three: Auditing Section Two of the I-9 Form

For Section Two of the I-9 form you’ll need to ensure one document from List A is included and completed or one document from List B and one from List C are listed and completed.

List A (Identity and Employment Authorization)

  • Appropriate document listed
  • List A document title correctly stated
  • List A document issuing authority correctly stated
  • List A document number correctly stated
  • List A document expiration date, if applicable, correctly stated
  • Receipt showing application for document accepted; awaiting original to be presented within 90 days

List B (Identity)

  • List B document title correctly stated
  • List B document issuing authority correctly stated
  • List B document number correctly stated
  • List B document expiration date, if applicable, correctly stated
  • Receipt showing application for document accepted; awaiting original to be presented within 90 days

List C (Employment Authorization)

  • Employee’s first day of employment correctly stated (mm/dd/yyyy)
  • Signature of Employer/Authorized Representative present and in correct box
  • Date of certification correctly stated (mm/dd/yyyy)
  • Certification signed by the third business day after the hire date
  • Title of Authorized Representative correctly stated
  • Last Name and First Name of Authorized Representative correctly stated
  • Employer’s Business or Organization Name correctly stated
  • Address of business correctly stated – No PO boxes allowed

Step Four: Auditing Section Three of the I-9 Form

When conducting your internal audit, Section Three of the I-9 form deals with reverification which only applies if evidence of employment authorization (List A or List C document) presented in Section two expires. Step four also covers what to do if you’re missing any I-9 forms.

  • Do not reverify: US Citizens and Noncitizen Nationals, or Lawful Permanent
  • Residents (I-551)
  • If employee listed an expiration date in Section 1, employment eligibility
  • reverified on or before expiration date
  • Date of rehire, if applicable (mm/dd/yyyy)
  • New name listed, if applicable
  • Document title correctly stated
  • Document number correctly stated
  • Employment authorization document expiration date (mm/dd/yyyy)
  • Signature of Authorized Representative present and correctly placed
  • Date of company certification (mm/dd/yyyy)
  • Printed name of Authorized Representative

Missing Forms I-9

For current employees – require employee to present documentation and complete a new Form I-9 with current dates. Date of hire will be the employee’s actual date of hire, which may have been years earlier. Attach a memo to the Form I-9 explaining the discrepancy between the date of hire and the date of completion of the Form I-9. Sign and date the memo.

For former employees – date and attach a memo to Forms I-9 for any terminated employees with missing or incorrect Form I-9 information. Retain it with other Forms I-9. Documenting this demonstrates an employer’s good faith effort to correct the forms by performing an internal self-audit.

Step Five: Addressing Form I-9 with Errors

Errors are bound to happen. Especially when you’re dealing with I-9 forms. But here’s what you do to ensure you keep on trucking!

Easily correctable – you may do so on the form. The best way to correct the Form I-9 is to line through the portions of the form that contain incorrect information (preferably in a contrasting ink color), then enter the correct information. Initial and date your correction. Never use white correction fluid. If you have previously made changes on Forms I-9 using white correction fluid instead, USCIS recommends that you attach a note to the corrected Forms I-9 explaining what happened. Be sure to sign and date the note.

Not easily correctable – complete a new Form I-9.

The old Form I-9 is attached to the new one, along with a note explaining the reason for creating a new Form I-9. Do not throw away the old form.

Step Six: Administrative Wrap Up

You’ve just completed conducting your internal I-9 Form! But you’re not completely done, yet. There are still a few administrative things you’ll need to wrap up.

Photocopies of List 2 documents – if they exist, are attached to the Form I-9 and are readable. It is not mandatory to make photocopies (except in Colorado), but if they are made, they must be kept. If photocopies are made for one employee, they must be made for all employees.

Employers enrolled in E-Verify must keep copies of the following documents if they are presented by the employee – US Passport or Passport Card, Permanent Resident Card (I-551), or Employment Authorization Card (I-766).

Manual Audit Log – The list of the Forms I-9 containing errors is completed. (This is the audit log that shows you have made a good faith effort to ensure Form I-9 compliance. The log should contain three columns: employee’s name, the errors, and the actions taken to rectify the errors.)

Why You Need To Do This, Right Now

Now you’re on your way to conducting a flawless Form I-9 internal audit. But why was this so important? Recently there has been an increase in enforcement for Form I-9 audits for employers. So what exactly changed?

On January 10, 2018, early morning reports of raids by Immigration and Customs Enforcement (ICE) confirmed what had been assumed – worksite enforcement has been increased and employers need to take note. The continued reports of high-profile ICE raids are definitely intentional. ICE wants employers to know that they’ve increased enforcement and they want you to take this very seriously. The current administration also appears to be building upon successful tactics that were used during both the Bush and Obama eras by focusing on administrative arrests of employees and requests for Forms I-9 through a Notice of Inspection (NOI) to employers. ICE conducted 1,279 audits of I-9 forms in 2016 and that number is expected to rise dramatically under the new enforcement focus.

Sure this can be scary, but knowing how to conduct your own internal I-9 form audits can help. And the word to remember for this process is “thorough.” An internal audit should include an in-depth review of all of an organization’s Forms I-9. Considering the limited resources and time of an organization, a comprehensive review of all I-9 records may not be feasible. In this case, organizations are encouraged to review a significant and fair sample of Forms I-9 to determine where the majority of errors/omissions occur, how to correct these, and how to implement better training and policies to ensure proper completion and compliance moving forward. For more information on self-auditing guidelines see the Department of Justice publication: Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.

Let AZ HR Hub know how we can help your company.

Why should you improve your employee onboarding program?

Employee onboarding is a very method used in talent acquisition.
If done right, employee onboarding process can easily become your secret weapon for hiring and retaining talent.

A successful employee onboarding program ensures that your best candidate actually shows up on their first day at the new job.

This is because a successful employee onboarding process starts at the moment your best candidate accepts your offer.
If you don’t engage you best candidates until their start date, they might accept a better offer or a counteroffer from their current employer.

It also helps to improve retention, engagement, satisfaction, and productivity of your new employees.

According to the Society For Human Resources Management (SHRM):

  • 69% of employees are more likely to stay with a company for three years if they experienced great onboarding.
  • Organizations with a standard onboarding process experience 50% greater new-hire productivity.
  • 54% of companies with onboarding programs reported higher employee engagement.

3 best employee onboarding tips

Here are the best 3 tips that will help get the most out of your onboarding program:

Tip #1: Plan and organize 

If you want to maximize the power of your onboarding process, you need to carefully structure it. To learn how, check out our step-by-step Guide on how to successfully onboard new employees.

Keep in mind that:

  1. A successful onboarding is a process
    A successful employee onboarding is not an event that takes place on your new employee’s first day at the office. It is a continuous process that starts at the moment your best candidate accepts your job offer.
  2. A successful onboarding is people oriented
    A successful employee onboarding is not focused on tasks, but on people.
    The human touch drives onboarding success.  The secret of great onboarding is the fact that it makes your new employees feel welcomed and integrated into your company culture from the day one!

Tip #2: Automate 

Automating your employee onboarding process will help you save time and your nerves. There are many different employee onboarding tools you can use to easily automate your onboarding process.

There are 3 main types of employee onboarding tools:

  1. Checklists: Checklists are the most simple and straightforward tool that can help you onboard new employees.
  2. Specialized tools: Specialized employee onboarding tools are tools created for the sole purpose of improving the employee onboarding process.
  3. Integrated tools: Integrated tools are comprehensive, all-in-one tools that offer solutions for your whole HR management process, including payroll, benefits, time and attendance, etc.

Tip#3: Be creative 

To make your new employees’ onboarding experience truly unique, you need to get creative! Luckily for you, we compiled the best and the most innovative employee onboarding ideas and examples from experts to inspire you!

Here are 3 simple, but creative employee onboarding ideas you can easily implement:

  1. Welcome GIF or video: Gather your team and create a welcome video for your new employee!
    If your employees shy away from a camera or you don’t have enough time on your hands, go with the quicker version – create a welcome GIF!
  2. Decorate your new employee’s desk: Decorate your new employee’s desk with some balloons, welcome sign and maybe even some cake! You can also pack your company swag (such as branded notebook, pens, T-shirt, water bottle, etc.) as a present!
  3. 100th-day party: Throwing a 100 day on the job party for your employees is a great opportunity to shower them with some attention and remind them how much you are happy to have them joined your company.
People Management Mistakes That Small Businesses Tend to Make

While there are fewer employees to contend with in a small business, people management is just as important as in larger businesses. Since small businesses may have smaller HR departments or may not have any HR department at all, the responsibility of managing the people often falls on a manager or entrepreneur whose expertise is in a different area. As a result, a few management mistakes commonly occur.

Hiring Too Fast

When a position opens up in a small business, it leaves a large void. It is often necessary to fill the position quickly in order to keep the business running smoothly. Unfortunately, many hiring managers in small companies cave in from the pressure and hire someone that may be less qualified just to fill the position.

Not Allocating Enough Resources toward Training

Training takes time and money; there is no avoiding it. Many small businesses make the grave error of failing to properly train employees. A failure to properly train can cause a company to lose customers, make an employee feel unprepared and bitter towards the company, and cost the company money.

Failing to Document Performance Issues

Performance and behavioral issues are a problem for any company. Failure to document performance issues can give employees silent approval for unacceptable behaviors, which can lead to further behavioral issues and foster discontent among faithful employees that achieve the standards. If an employee is fired for performance or behavioral issues and no documentation is made concerning the issues, the employee may also be able to collect unemployment or sue for wrongful termination.

Not Firing In a Way That Benefits the Company

Many small business owners and managers fire employees according to personal relationships, tenure, and other reasons that have nothing to do with company performance and the bottom line. If it is necessary to fire someone because the business cannot afford to keep all of the employees in position, it is important to review performance factors and make a logical decision. If an employee needs to be fired because of performance or behavior, it is important to put personal feelings aside and focus on meeting the needs of the business first.

Failing to Comply with Employment Laws

Certain employment laws apply to businesses with just one employee, while other laws apply to businesses with 12 or more. Others apply to businesses with more than 50 employees. It is critical for employers to study these requirements and take the necessary steps to comply with all applicable laws.

Small business owners must be aware of human resource laws regarding:

  • Discrimination
  • Family leave
  • Military leave
  • Minimum wage requirements
  • Overtime
  • Safety standards
  • Disability

Misclassifying Employees

Some small businesses classify employees as contractors to save on taxes, but this can be a critical error if employees do not fit the legal description of contractors. Different laws may also apply if an employee is classified as part-time instead of full-time. Small business owners must be careful to classify employees properly so that they do not incur penalties.

Top 10 Don’ts When You Fire an Employee

Firing an employee is stressful for all parties—not just for the employee losing a job. No matter how well you’ve communicated about performance problems with the employee, almost no one believes that they will actually get fired. With cause, too. The average employer waits too long to fire a non-performing employee much of the time.

So, employees convince themselves that they won’t get fired: they think that you like them; they think that you know that they are a nice person, or you recognize that they’ve been trying hard. In fact, you may believe and think all of these things. But, none of your feelings matter when the employee is not performing his job.

Firing an employee may take you awhile—usually much longer than the circumstances merit. Because you are kind, caring, and tend to give employees another chance. But, these are the top 10 things you do not want to do when you do decide to fire an employee.

Don’t Fire an Employee Unless You Are Meeting Face-to-Face

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Do not fire an employee using any electronic method—no emails, IMs, voicemails, or phone calls. Even a letter is inappropriate when you fire an employee.

When you fire an employee give them the courtesy that you would extend to any human being. They deserve a face-to-face meeting when you fire an employee. Nothing else works.

The fired employee will remember and your other employees who remain have even longer memories. And, no, during this time of social media dominance, don’t believe for a minute that the circumstances of the firing will remain secret.

You will have created a scenario in which your remaining employees are afraid to trust you. Or worse, they trust that you may harm them, too.

Don’t Fire an Employee Without Warning

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Nothing makes an employee angrier than feeling blindsided when fired. Unless an immediate, egregious act occurs, the employee should experience coaching and performance feedback over time. Before you fire an employee, try to determine what is causing the employee to fail.

If you decide the employee is able to improve her performance, provide whatever assistance is needed to encourage and support the employee. Document each step in the improvement process so that the employee has a record of what is happening at each step. The employer is also protecting its own interests in the event of a lawsuit over the termination.

If you are confident that the employee can improve, and the employee’s role allows, a performance improvement plan (PIP) may show the employee specific, measurable improvement requirements. (A PIP is difficult, if not impossible, with a manager or HR staff, once you have lost confidence in their performance.)

Do not, however, use a PIP unless you are confident that the employee can improve. The agonizing process of meeting weekly to chart no progress is horrible for the employee, the manager, and the HR rep, too.

The actual termination—while almost always somewhat of a surprise—should not come with no warning.

Don’t Fire an Employee Without a Witness

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Especially in the US, anyone can sue anybody, at any time, for any reason. In employment termination cases, the employee has to find a lawyer who believes he can win the case and thus, collect his fee. The best practice is to include a second employee in the meeting when you fire an employee.

This gives you an individual who hears and participates in the employment termination in addition to the manager. This person can also help pick up the slack if the hiring manager runs out of words or is unsure of what to say or do next.

This witness is often the Human Resources staff person. The HR person has more experience than the average manager, in firing employees, so can also help keep the discussion on track and moving to completion.

The HR person can also ensure that employees are treated fairly, equally, and with professionalism across departments and individual managers. This limits your liability when you fire an employee.

Don’t Supply Lengthy Rationale and Examples for Why You Are Firing the Employee

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If you have coached and documented an employee’s performance over time and provided frequent feedback, there is no point in rehashing your dissatisfaction when you fire the employee. It accomplishes nothing and is cruel.

Yet, every employee will ask you why. So, have an answer prepared that is honest and correctly summarizes the situation without detail or placing blame.

You want the employee to maintain her dignity during an employment termination. So, you might say, “We’ve already discussed your performance issues. We are terminating your employment because your performance does not meet the standards we expect from this position.

“We wish you well in your future endeavors and trust that you will locate a position that is a better fit for you. You have many talents and we are confident that you will locate a position that can take advantage of them.”

Or you can simply remind the employee that you have discussed issues with him or her over time, and leave it at that.

The more detailed you become, the less able you will be to use any of the information you discover following the employment termination in a subsequent lawsuit. And, as an employer, you will always find out additional information.

For example, think about a terminated HR staff person who had months of new employee paperwork in her drawer. The employees had not been enrolled in healthcare insurance.

In another example, a marketing employee had the entire bookkeeping for her bar which she operated in the evenings on her company-owned computer. (The employer was kind and gave her a copy of her bookkeeping which they didn’t need to do.)

Need to attract millennials? Offer student loan benefits!

If you want to attract and retain millennials, it’s all about the benefits. And no perks are more sought after among this group than student loan benefits.

Ten years ago, millennials flocked to employers offering free snacks and ping-pong tables, but as this demographic matures, they seek more meaningful benefits from their company with long-term results. Similarly, growing companies have a hyper-sensitive need to appeal to the millennial group because they will soon make up a clear majority of the workforce.

Focused on their financial futures

We talk to our client’s millennial staff all the time about their needs. My team also talks to our clients, most of which are millennials, every day about how important their financial future is to them.

What we’ve learned is that most millennials have lofty goals, and if a company can help them achieve those goals by supporting their financial future beyond just an income, they have a strong chance of attracting top-performing talent. Millennials also focus on values, so if a company can demonstrate how they support and reflect their employees’ values – financial and otherwise – that goes a long way.

Student loan debt is considered an epidemic in our country and is a major obstacle to the financial independence and goals that millennials seek.  Those with student loans are constantly looking for ways to contribute savings to their payments – from more practical strategies like refinancing or taking on a “side hustle,” to extremes like selling their eggs or participating in medical trials.

Enlightened companies are beginning to recognize how student loan repayment programs can benefit their employees by enabling financial independence, which naturally creates a more positive outlook on their professional and personal life. According to a recent study we conducted with LendEdu, we found that 58% of millennials would prefer student loan refinancing benefits from employers over additional vacation days – pretty powerful! This shows, plain and simple, how millennials are looking for benefits and employers that support their financial well-being.

Offering a student debt repayment benefit reinforces that employers care about the same things their employees do, establishing trust and demonstrating how the company and staff have the same values. It also helps to boost employee morale and satisfaction, and a satisfied workforce is one that’s likely more productive, committed to their team’s success and loyal to their company.

Employers as advocates

On the recruitment side, this benefit allows employers to attract top-performing millennials who seek employers that advocate for their financial health. Companies that are first to introduce this benefit are shaping their brand perception as one that’s invested not only in the financial health of their employees, but in doing good for people facing an extreme burden.

In a time where job switching has become more common – and where 50% of millennials carry student loan debt – student loan refinancing benefits can help encourage employees to stick around for the long-haul. This benefit establishes trust and demonstrates that employers care deeply about the financial future and overall well-being of their staff, which, for millennials, is far more appealing than most “work perks.”

 

 

30 employee handbook do’s and don’ts from the NLRB

To help employers craft handbooks that don’t violate the National Labor Relations Act, the National Labor Relations Board has issued a compilation of rules it has found to be illegal — and rewritten them to illustrate how they can comply with the law.

It was issued as a memorandum by NLRB General Counsel Richard F. Griffin, Jr. to “help employers to review their handbooks and other rules, and conform them, if necessary, to ensure they are lawful.”

Specifically, the memorandum points out employer policies found to violate and conform to Section 7 of the NLRA.

The main area of concern

Section 7 mandates that employees be allowed to participate in “concerted activity” to help improve the terms and conditions of their work.

The NLRB has made it abundantly clear recently that it’s on the lookout for rules that:

  • explicitly restrict protected concerted activity, and/or
  • could be construed to restrict protected Section 7 activity.

One thing the memorandum makes very clear: extremely subtle variations in language could be the difference between having a legal policy in the NLRB’s eyes and having one that’s viewed as violating the NLRA.

What to say, what not to say

Here are many of the dos and don’ts highlighted by the memorandum, separated by topic:

Rules regarding confidentiality

  • Illegal: “Do not discuss ‘customer or employee information’ outside of work, including ‘phone numbers [and] addresses.’” The NLRB said, in addition to the overbroad reference to “employee information,” the blanket ban on discussing employee contact info, without regard for how employees obtain that info, is facially illegal.
  • Illegal: “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].” The NLRB said a broad reference to “another’s” information, without clarification, would reasonably be interpreted to include other employees’ wages and other terms and conditions of employment.
  • Illegal: Prohibiting employees from “disclosing … details about the [Employer].” The NLRB said this is a broad restriction that failed to clarify that it doesn’t restrict Section 7 activity.
  • Legal: “No unauthorized disclosure of ‘business “secrets” or other confidential information.’”
  • Legal: “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”
  • Legal: “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”

The NLRB said the last three rules above were legal because: “1) they do not reference information regarding employees or employee terms and conditions of employment, 2) although they use the general term “confidential,” they do not define it in an overbroad manner, and 3) they do not otherwise contain language that would reasonably be construed to prohibit Section 7 communications.”

Rules regarding conduct toward the company and supervisors

  • Illegal: “Be respectful to the company, other employees, customers, partners, and competitors.”
  • Illegal: “Do ‘not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.’”
  • Illegal: “Be respectful of others and the Company.”
  • Illegal: “No defamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management.’”

The NLRB said the rules above were unlawfully overbroad because: “employees reasonably would construe them to ban protected criticism or protests regarding their supervisors, management, or the employer in general.”

  • Illegal: “Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.”
  • Illegal: “‘Chronic resistance to proper work-related orders or discipline, even though not overt insubordination’ will result in discipline.”

The NLRB said the rules above, while banning “insubordination,” also ban “conduct that does not rise to the level of insubordination, which reasonably would be understood as including protected concerted activity.”

  • Illegal: “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”
  • Illegal: “It is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation.”
  • Illegal: “Do not make ‘statements “that damage the company or the company’s reputation or that disrupt or damage the company’s business relationships.”‘”
  • Illegal: “Never engage in behavior that would undermine the reputation of [the Employer], your peers or yourself.”

The NLRB said the rules above “were unlawfully overbroad because they reasonably would be read to require employees to refrain from criticizing the employer in public.

  • Legal: “No ‘rudeness or unprofessional behavior toward a customer, or anyone in contact with’ the company.”
  • Legal: “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”

The NLRB said the rules above are legal because they wouldn’t lead an employee to believe they restrict criticism of the company.

  • Legal: “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.” The NLRB says employees would reasonably understand that this states the employer’s legitimate expectation that employees work together in an atmosphere of civility.
  • Legal: “Each employee is expected to abide by Company policies and to cooperate fully in any investigation that the Company may undertake.” The NLRB said this rule is legal because “employees would reasonably interpret it to apply to employer investigations of workplace misconduct rather than investigations of unfair labor practices or preparations for arbitration.”
  • Legal: “‘Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in’ discipline.” The NLRB said: “Although a ban on being  disrespectful’ to management, by itself, would ordinarily be found to unlawfully chill Section 7 criticism of the employer, the term here is contained in a larger provision that is clearly focused on serious misconduct, like insubordination, threats, and assault. Viewed in that context, we concluded that employees would not reasonably believe this rule to ban protected criticism.”

Rules regarding conduct between employees

  • Illegal: “‘Don’t pick fights’ online.”
  • Illegal: “Do not make ‘insulting, embarrassing, hurtful or abusive comments about other company employees online,’ and ‘avoid the use of offensive, derogatory, or prejudicial comments.’”
  • Illegal: “Show proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.”
  • Illegal: “Do not send ‘unwanted, offensive, or inappropriate’ e-mails.”

The NLRB said the rules above were unlawfully overbroad because employees would reasonably construe them to restrict protected discussions with their co-workers.

  • Legal: “[No] ‘Making inappropriate gestures, including visual staring.’”
  • Legal: “Any logos or graphics worn by employees ‘must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.’”
  • Legal: “[No] ‘Threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.’”
  • Legal: “No ‘harassment of employees, patients or facility visitors.’”
  • Legal: “No ‘use of racial slurs, derogatory comments, or insults.’”

The NLRB said the rules above were legal because: “when an employer’s professionalism rule simply requires employees to be respectful to customers or competitors, or directs employees not to engage in unprofessional conduct, and does not mention the company or its management, employees would not reasonably believe that such a rule prohibits Section 7-protected criticism of the company.

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