In this episode of Career Compass, Vernon Williams and Aly Sharp are joined by SHRM Knowledge Advisor and HR expert Katie Brennan to discuss the critical role legal compliance in operating a successful organization, and explore the various federal, state and local labor laws impacting HR employees and organizations, including FMLA, healthcare, employee leave and much more.
With employment laws constantly changing, HR professionals need to stay updated on policy and compliance issues that create safe, equitable and productive workplaces. In this episode of Career Compass, hosts Vernon Williams and Aly Sharp are joined by SHRM Knowledge Advisor and HR expert Katie Brennan to discuss the critical role of legal compliance in operating a successful organization, and explore the various federal, state and local labor laws impacting HR employees and organizations, including FMLA, healthcare, employee leave and much more.
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Vernon Williams: Welcome back to season five of Career Compass, a podcast from SHRM, the Society for Human Resource Management, and the SHRM Foundation. Career Compass prepares the future leaders today for better workplaces tomorrow.
Aly Sharp: As the voice of all things work, SHRM supports students and emerging professionals with advice, information and resources for every step of their career.
Vernon Williams: Designed for the student or emerging professional, Career Compass delivers timely, relevant, and critical conversations about work to help succeed in your career journey. Thank you for joining us for this episode. My name is Vernon Williams, and I will be your co-host.
Aly Sharp: And my name is Aly Sharp, and I will also be your co-host. During this episode, we will be joined by Katie Brennan, who works in SHRM's Knowledge Centre, responding to all types of HR inquiries. But today, we're focused on employment law and compliance. Also, just so you know, this episode is valid for professional development credit, or PDCs, for the SHRM-CP or SCP. We will provide the code later in this episode. Let's jump in and introduce you to today's guest. Vernon, a little birdie told me that you were once driven by the law. So what has you excited about today's legal topic?
Vernon Williams: Somebody has done a little bit of their homework. I was driven by the law, and I was featured in my local newspaper because growing up, I really wanted to be a lawyer. I had been watching entirely too much legal TV. I think The Practice was on at the time, which is probably dating me a little bit, I have to imagine Law & Order was around. And so I really wanted to do criminal law. And so what's got me excited about today is talking a little bit more about what legal sense the HR community is dealing with, or what laws, compliance issues and so forth that happen in the workplace. So that's what I'm looking forward to hearing, and take me back to my younger days and continuing to be driven by the law.
Aly Sharp: That's awesome. I'm sure you've already heard that my business law class was the only class that I did not do so great in my undergrad. So I'm excited, hopefully I learn a little bit more from this podcast than I did at school. But anyway, let's jump in. Katie Brennan serves as an HR Knowledge Advisor with the SHRM Knowledge Center. With nearly two decades of HR experience, she has worked for both large and small employers in the public and private sectors. She began her HR career in higher education, later transitioned into the hospitality industry, and eventually moved into the nonprofit realm. Katie holds a Bachelor's Degree in Human Resource Development from the University of Florida, as well as the SHRM-CP certification. And with that, Career Compass would like to warmly welcome Katie Brennan.
Katie Brennan: Thank you so much for having me, I'm excited to be here today.
Vernon Williams: Well, thank you for joining us, Katie. And we just heard a little bit about your background from your bio, but can you tell our audience or give our audience a sense of why it is that you chose to be a Knowledge Advisor? Perhaps compare and contrast what working in human resources at a university or other nonprofits, or even the hospitality industry, looks like?
Katie Brennan: Absolutely. I had been practicing HR for a while, and was in the market for a new job. I really enjoyed the compliance aspect of HR, as well as being a helpful resource to management and staff. But I wasn't truly excited about practicing HR anymore, I wasn't really thrilled with the day-to-day. So when I came across the Knowledge Advisor position, it seemed like the best of both worlds. I could talk about HR issues all day, particularly employment law, which I love, and I would be a resource to other HR professionals, but I wouldn't have to manage the day-to-day operation. Not to mention I would have SHRM on my resume, which, as you can imagine, is pretty exciting for any HR professional. I remember when I got the call for my first interview and I was shocked, and thought to myself, "Is this a mistake?" I was so excited to be contacted by SHRM.
One of the reasons I chose HR as a profession was because I knew that it would be versatile. Every organization needs human resources, pretty much, regardless of industry or location. And as you mentioned, my experience includes organizations of various sizes and industries. What I've found in my experience is that the industry or sector doesn't impact the work of an HR professional as much as employer size does. When you work for a large organization, which is where I got started, there are many people, multiple departments even, making sure the work is getting done. Things are happening that you don't even know about because in your position, you're laser-focused, so someone else is handling another issue that is behind a curtain. But in small organizations, there are few, maybe only one HR professional doing everything, which can be really stressful and overwhelming, but it can also be an invaluable learning experience.
Vernon Williams: So two quick follow-up questions based on what you were just saying. Do you have a preference between working in HR in larger versus smaller organizations? Which would you say is more convenient or easier, or maybe talk through some of the challenges of that? And then second question, which might be a little bit silly, but do you need a law degree to work in HR compliance?
Katie Brennan: So with respect to your first question, for me, if I were to go back to practicing HR, I would probably look for a position in a larger organization, maybe that was focused on compliance, rather than a smaller organization where I was responsible for keeping all the balls in the air. And there's a lot on the HR plate, and so when you are working in a small company or you are an HR department of one, you're tasked with all of these different projects and objectives that are not necessarily something that I enjoy. So knowing what I know, I mean, having worked in a small organization versus a large one, I would say that I probably learned the most when I worked for a smaller nonprofit. I got a lot out of every position I held, but if I were to go back, I would definitely want to have a larger organization with just a focus on a specific HR function. Oh, and with respect to your second question, you definitely don't need a law degree. It certainly couldn't hurt, I've actually considered it myself, but it's not necessary.
Aly Sharp: That would be so cool. I know I have some friends who are going through law school right now for other things, and I mean, it's tough stuff, but I think when you realize what your passion is and it's something you can attain, I think that's definitely an interesting way to go. I just want to touch on our second question here. Can you talk about why it is important for HR professionals to focus on employment law and how it might impact the larger organization?
Katie Brennan: Certainly. There are a myriad of federal, state and local labor laws that touch most aspects of the HR function. From wage and hour regulations to statutory benefits like healthcare, FMLA, and paid sick leave, OSHA requirements, anti-discrimination laws, to name a few. Some laws are enforceable even before employment begins. So when an organization is out of compliance, it can be costly. Violations can result in penalties, back pay, and sometimes even punitive damages. The price tag can be high, six figures in some cases, in rare instances, more. In fact, just today, I saw where a national retail chain is being charged almost $1.7 million in fines for OSHA violations. So one of HR's responsibilities is to ensure that their organization is complying with these many laws, mitigating the risk that their employers should be compelled to pay a hefty penalty or be forced to reach a settlement with a current or former employee. It's a lot for employers, namely HR professionals, to keep up with.
Vernon Williams: So and we've asked a couple of our guests this, and it's kind of like, and I think I said this previously, it's kind of like choosing a favorite child, but you might have just convinced me, telling me that it's a $1.6 or $1.7 million settlement, would you say that HR compliance or law is the most important aspect in human resources?
Katie Brennan: Ooh. Well, I am biased, but I think that when you think about the common functions within a typical organization, you have HR, you have finance, maybe business development, sales, customer service. So HR and finance are probably the two, I would think, that have the most compliance responsibilities. In some cases or in some organizations, HR reports to finance. And so it's all under one umbrella. It would be hard to say which has the greater responsibility, but given the number of labor laws that HR professionals are tasked with keeping up with, again, I'm biased, but I would say HR.
Vernon Williams: Fair enough, fair enough. Every episode we talk about COVID and how it's completely changed how we operate in terms of the workplace. And I'm sure this was true even prior to COVID, that there's a lot of legislation and policies that you need to know. So given that, how do you stay up to date with all of the issues facing human resource professionals? And then the second part of the question, can you talk about two or three of the most important legal issues facing HR professionals today?
Katie Brennan: That's a great question. We're asked this occasionally in the Knowledge Center by our members actually. I personally rely heavily on e-newsletters. SHRM, of course, has daily and less frequent newsletters to help HR professionals stay current on legislative updates and trends. I also subscribe to free law firm newsletters, and those of federal agencies like the Department of Labor, which can be incredibly helpful. In fact, that's where I came across the information on the OSHA fines this morning. I'm also lucky to work with the SHRM Knowledge Center where we're always sharing legislative updates with each other as they arise. In terms of important legal issues facing HR professionals and compliance, one of the biggest, I would say, is around employee classification, as employee versus independent contractor, there can be really steep penalties for misclassifying a worker as an independent contractor. So that's something actually that we address often in the Knowledge Center.
Discrimination is another big topic, and that's something that can arise at any point in the employment life cycle. With any employment decision, discrimination is always something that employers want to make sure that they are not inadvertently committing, if you will. And discrimination claims can also come with hefty penalties as well.
Vernon Williams: And just quick follow-up question, can you give us a little bit more detail on the discrimination or DEI, because I know that's an important topic that many of our listeners talk about in some of our other areas that we do in terms of student programming? Give us a sense of where companies can do better or where some of the trouble comes when it comes to discrimination.
Katie Brennan: Absolutely. So employers are not required to have DEI initiatives, though they're certainly becoming more prevalent now in the current climate, and they can help in terms of ensuring equitable pay. There are also local laws or rather state laws that are being passed regularly that enforce pay equity or pay transparency among employers. But discrimination has always been an issue, under Title VII of the Civil Rights Act and the ADA and Age Discrimination and Employment Act, Pregnancy Discrimination Act. All of these laws have, for years, been mandating that employers use non-discriminatory decision making in their employment practices. Certainly, it's important for compliance purposes, but I mean, it's just obviously the right way to do business. It's ethical and it's just the right thing to do. So to be an employer of choice, to retain employees and prevent turnover, for instance, having a culture that promotes diversity, equity, inclusion is paramount.
Aly Sharp: I know you mentioned working at the Knowledge Center and its benefits, but some of our listeners may not even know that the Knowledge Center exists because it's a professional member benefit. Could you tell us a little bit more about the Knowledge Center, and perhaps a question you've received lately to employment law and how you went about responding to that inquiry?
Katie Brennan: I'd be happy to. A lot of our members don't know that our service is available, but in my opinion, it is one of the most valuable SHRM member benefits. So the knowledge center includes SHRM Express Requests, which are curated and packaged resources on trending topics, and the Knowledge Advisor service, which I'm a part of. We have about 20 Knowledge Advisors, all of whom are former HR practitioners from a variety of backgrounds. Together, we have a combined average of 19 years of experience. We field questions via phone, chat and email, on a wide variety of HR topics, anything you can think of really. We get a lot of questions related to FMLA and the Fair Labor Standards Act, reasonable accommodations under the ADA. Members often call us for help with their employee relations and performance management issues, questions surrounding I-9 compliance. We get a lot of inquiries regarding statutory benefits like state paid sick leave laws and the Affordable Care Act. Questions on background checks, drug testing, the list goes on.
As I mentioned, we're all former HR practitioners, we're not attorneys, but we can provide general information, point to regulations, discuss our own experience and best practices. We often conduct research for members as well. I would add that members of all career levels and backgrounds contact us for assistance, but I feel like the members that seem to value our service most are those that are new to the profession. Maybe they're emerging professionals or perhaps they just happen to be wearing the HR hat in their organization. And also, those working as an HR department of one, who don't have anywhere to turn within their organization for help or an unbiased opinion. They rely on us for guidance and often simply to serve as a sounding board or resource to just double check their train of thought.
One of the probably most common questions we get, or topics we address is around exempt pay. Members are often seeking to understand who's eligible for exemption, how much they must be paid. And often, we get the question of, "If an exempt employee is out for a full day or a partial day, can we deduct their pay?" And so with that, I'll typically explain that while exempt employees must receive their regular salary for any week in which they work, there are limited exceptions. And one of them is that if an exempt employee is out for a full day due to personal reasons or illness, then generally, employers can deduct their pay for the full day, but that exempt pay cannot be deducted for partial day absences. And then I'll tend to provide, as a follow-up to our members, SHRM resources and Department of Labor resources that they can reference as well.
To give you another example of an employment law related question, another popular question we get is regarding an employer's obligation to an employee on FMLA leave, when their leave is exhausting but they need additional leave due to their serious health condition. And this can be a complicated topic because it can involve multiple laws, federal and state. So with that, I will generally explain that before an employer takes adverse action, an employer should consider their obligations under any sort of employer policy, state leave law, and also their obligations under the Americans With Disabilities Act. The ADA requires employers to provide accommodations to employees with disabilities, and providing leave beyond what an employee is regularly entitled to is considered an accommodation. So absent undue hardship, an employer may need to consider providing leave there. Similarly, I'll typically follow up with the member with regulations or EEOC guidance or SHRM resources to help them through that process.
Vernon Williams: So that's quite a bit. And so let me give another plug for the Knowledge Center, and just so that folks are aware, how many inquiries can a member send to the Knowledge Center per year so that they can get some of those questions answered?
Katie Brennan: That's an excellent question. Members have 15 inquiries with us per their membership year.
Vernon Williams: And I'm starting to get some of the emails that the Knowledge Center sends out as an internal employee to SHRM, and seeing the number of responses that you all provide on a monthly and annual basis. Thank you so much for this important work that you do, Katie.
Katie Brennan: Oh, thank you for your gratitude.
Vernon Williams: I want to pause just for a second to take care of a housekeeping item. Those of you listening to this podcast who are seeking professional development credit for this program, it is valid for 0.5 PDCs for the SHRM-CP or SHRM-SCP. The code to redeem your PDCs is 23-6TEHS. Please note that this code will expire on November 16th, 2023. Again, the code is the number 2, the number 3, dash, the number 6, the letter T as in Tango, the letter E as in Echo, the letter H as in Hotel, the letter S as in Sierra. All right, jumping back into the podcast, you mentioned earlier that the cost for non-compliance can be quite expensive. So what are your thoughts, or how do you go about creating a culture that is seamlessly adhering to the laws and compliance issues?
Katie Brennan: I would say that management cooperation is critical here. HR leads the charge in a sense, but we can't do it without the help of frontline managers and the support of leadership. To give you an example, oftentimes HR professionals are approached by a manager where the manager is ready to terminate an employee. And the HR's natural response is, "Well, have you been documenting performance issues?" So ideally, in the scenario, the manager will have been documenting performance issues up to the point where they're ready to terminate. And the reason I bring this up is because even though most employment is at-will, meaning employers can terminate with or without cause, the at-will doctrine doesn't protect employers against discrimination claims. So as a way to be proactive, it's important that employers follow their disciplinary processes consistently. And that's where we are relying on managers to help us with that so that if the unfortunate event arises where an employee is terminated, then they think they've been discriminated against and they go to the EEOC or they find a lawyer, the employer has the documentation to back up their employment decision.
Another example could be where, as HR, we rely on managers to identify instances when FMLA may be applicable to an employee's leave request, or to notify HR when an employee is requesting an ADA accommodation. So it's not that the manager or frontline supervisor would need to be administering these benefits or these accommodations, but being aware of, at a high level, these employment issues and when to pass the ball to HR is really important. Because if the ball has dropped at any point, it could lead to compliance issues.
Aly Sharp: That's a really good point. And I feel like a lot of times, like you said, people don't think about the documentation and making sure that every box is checked. It's not just, "Oh, well, I've had enough of this person, they need to go like." No, that's not that works. But we'll get you out of here after this question. But what advice or parting tips would you offer to students and emerging professionals who want to get into HR employment law and compliance?
Katie Brennan: That's a good question. People approach, I would say, the HR role or profession from a variety of different directions. Some through formal education, others slip into HR via way of an administrative position, where they were just forced to wear the HR hat and then decided they liked it, and so they pursued HR as a career. In any event, there is a lot to absorb when it comes to employment law and compliance. It's one of the things that, in my opinion, is better learned through study than through experience. Some things in HR are better learned through experience, like employee relations issues, but you really have to understand, have a knowledge of employment law in order to apply it in practice. So educational programs help, whether through college courses or via training programs or seminars like those offered by SHRM. But also, just independent reading and research can be helpful as well. Because, again, there is a lot to know when it comes to employment law, so establishing a foundational knowledge can be extremely helpful.
Vernon Williams: Katie, thank you so much for taking the time to share your HR journey and your thoughts about employment law and compliance.
Katie Brennan: You are most welcome, thank you for having me.
Aly Sharp: And with that, we're going to bring this episode of Career Compass to a close. We'd like to thank SHRM and the SHRM Foundation for providing us with this platform. But more importantly, we'd like to thank you all for joining us and hope you stay with us through the season, as we discuss more topics like this one.
Vernon Williams: For more exclusive content, resources and tools to help you succeed in your career, consider joining SHRM as a student member. You can visit us at shrm.org/students to learn more about being a part of a community of over 300,000 HR and business leaders, who impact the lives of over 115 million employees worldwide.
Aly Sharp: If you liked what you heard, follow and subscribe to Career Compass on Apple Podcasts, Spotify, Stitcher, Google Play, or wherever you listen to your podcasts. And do you think you have a topic that you would like us to cover or a guess we should hear from? We'd love to hear it. Email us at careercompasspodcast@shrm.org.
Vernon Williams: Last day, are you looking from a work and career-related podcasts? Check out All Things Work and Honest HR at shrm.org/podcasts. Thank you again for listening, and we'll catch you on the next episode of Career Compass.