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SHRM Newsletter: Holiday Parties



December 5, 2011

This is Utah SHRM Legal-mail no. 2011-22 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).








IT’S BEGINNING TO LOOK A LOT LIKE…HOLIDAY PARTIES: This is a very festive time of the year, but like all other employer-sponsored activities, holiday parties have risk.  HR holiday party stress often boils down to worries about how employees will behave (or misbehave), whether they will over-imbibe on “egg nog” and whether or not the holiday theme will offend a diverse workplace.  Here are some good, reasonable holiday party risk management tips from another employment lawyer:

NLRB ACTS TO EXPEDITE UNION ELECTION PROCESS: The National Labor Relations Board has voted to revise and expedite the process it follows for conducting union elections.  Here is a summary of the NLRB’s election changes:  The 2-1 NLRB vote- along partisan lines- approving the changes drew swift criticism from Congress and the House of Representatives vote (also along partisan lines) to limit the NLRB’s ability to make such rule changes.  Democrats in Congress and Union officials praised the NLRB’s actions.  The House measure now faces uncertain prospects in the Democrat-controlled Senate.

EEOC IMPOSES NEW REGULATION REGARDING AGE DISCRIMINATION:  Speaking of partisan lines, some also emerged recently at the Equal Employment Opportunity Commission (EEOC).  The EEOC has passed a new regulation requiring that an employment practice that adversely impacts older workers must be justified by a “reasonable factor other than age” (RFOA).  The EEOC has indicated that an employer can prove that a RFOA exists using the following factors: “whether the employment practice and the manner of its implementation are common business practices; the extent to which the factor is related to the employer’s stated business goal; the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers); the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers; the severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and whether other options were available and the reasons the employer selected the option it did.”  For more information, see:

IRS GUIDANCE ON DOMESTIC PARTNERS AND CHILDREN: One of my law partners who works in estate planning, Randy Holmgren, has provided me with this interesting update: “As part of the Treasury Department's decision last year to recognize the community property rights of registered domestic partners in Washington, Nevada and California, the IRS has recently issued guidance that a child of an employee's domestic partner or same-sex spouse is considered to be a stepchild under the Internal Revenue Code, if the child is considered a stepchild under state law.  Here on the West Coast, children of domestic partners and same-sex spouses would be considered stepchildren under Washington, Oregon and California law.  The reason why this may be important is that under the Internal Revenue Code (IRC), employer-provided health care coverage for stepchildren is not taxable to the employee.  Thus, employees in registered DPs in CA, WA and OR, as well as same-sex marriages in CA, can cover the children of their partners (even if the child is not the child of the employee) on the employees' health plans without having income imputed to the employees under the IRC, through the calendar year in which the child turns 26, and without regard as to whether the child is a tax dependent or lives with the employee.  (For these children, it appears that the old ‘qualifying relative’ and ‘qualifying child’ tests for health care coverage taxation are gone).” Here is the guidance.  Q&A-7 at,,id=245869,00.html

SOME INTERESTING FLSA UPDATES: There are some interesting things happening in the world of the federal Fair Labor Standards Act (FLSA), which requires overtime pay and a minimum wage for nonexempt workers and regulates when minors can work and what they can do.  First, the Act got some recent news attention when GOP presidential candidate Newt Gingrich made some comments on whether the law unwisely limits work opportunities for minors.  Second, the United Senate is considering a bill (S. 1747) that would revise/update the requirements of the computer professional exemption.  Finally, the United States Department of Labor (DOL), which enforces the law, is expected to soon issue new regulations regarding employer recordkeeping.  There is speculation that the anticipated regulations will require employers to classify their independent contractors as exempt or nonexempt.  DOL has estimated that some 30% of workers are misclassified as independent contractors.  The issue is creating a lot of litigation right now, even in some unexpected places.  For example, a group of exotic dancers who have worked in various strip clubs in New England recently filed a lawsuit alleging they should be classified as employees instead of independent contractors.  Imagine trying to figure out which white collar FLSA exemption might apply to them!


Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Phone: 801-534-7315

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.