1283811-protests-1483480044-672-640x480Last week workers across the United States participated in a national protest aimed at President Trump’s immigration policies. Organized by advocacy groups and promoted largely through social media, “A Day Without Immigrants” involved an organized effort to urge workers to stay home in protest of the new administration’s immigration policies and actions, including recent enforcement raids, the proposed border wall, and the high-profile Executive Order on immigration and refugees. Employers’ reactions have ranged from closing their businesses in support of the protests to terminating employees for not coming to work.

This likely is not the end of such protests. On March 8, organizers of last month’s Women’s March on Washington plan to hold “A Day Without a Woman” protest, asking women to stay home from work in support of various issues that impact women. Other less publicized protests by different groups are also planned.

Impacted employers that seek to enforce their attendance rules and other workplace policies must carefully consider potential legal issues when reacting to employees who miss work in support of these protests. For example, the National Labor Relations Act (“NLRA”) protects both unionized and non-unionized workers who engage in protected concerted activity. Typically, this involves two or more workers acting together to improve or protest various terms and conditions of their employment, including protests related to pay, safety, hours of work, and other workplace issues. The discipline or discharge of employees who engage in protected concerted activity can result in charges of unfair labor practices before the National Labor Relations Board and potential liability. However, employee actions or protests that are purely political in nature, with no real connection to the workplace, are unlikely to qualify for protection under the NLRA.

The true objectives behind workers’ absences in supporting these causes can be unclear. The upcoming “A Day Without a Woman” protest identifies a number of diverse concerns, some of which arguably could relate to workplace issues, and some of which clearly do not. The organizers’ website poses the following questions in asking supporters to withhold their labor on March 8:

  1. Do businesses support our communities, or do they drain our communities?
  2. Do they strive for gender equity or do they support the policies and leaders that perpetuate oppression?
  3. Do they align with a sustainable environment or do they profit off destruction and steal the futures of our children?

Employers who choose to discipline or terminate employees who elect to miss work as part of these protests need to consider, on a case-by-case basis, whether an employee’s actions qualify as a protected protest related to workplace conditions, particularly when they can be linked to their own workplace, or are a more generalized expression of support for a political cause. Employees who explicitly tie their absences to issues in the workplace are far more likely to be protected under the NLRA.

Employers also must consider the potential applicability of both state and federal anti-discrimination laws, like Title VII, when reacting to employee absences. Both the “A Day Without Immigrants” and “A Day Without a Woman” protests potentially implicate protected classifications under the anti-discrimination laws – e.g., national origin and gender. Employers that choose to pursue discipline or termination may potentially face allegations of discrimination, either based upon assertions that the employer harbored animus towards a particular protected group (and its causes), and/or that the employer selectively enforced its policies to the detriment of the protected group. Employers should base any disciplinary or discharge actions on previously established and promulgated workplace policies, including attendance rules and no-call/no-show policies. Employers also should ensure that they have acted consistently with respect to past employee absences (like the parade in Cleveland after the Warriors blew a 3-1 lead in the 2016 NBA Finals). A prior, consistent history of discipline or discharge in similar situations will help protect against allegations of discrimination.

Forms-2It’s no secret that Donald Trump is fulfilling his signature campaign promise to address immigration reform. So far, most of the media attention has been on the U.S.-Mexico border wall and the travel/refugee ban. For employers, however, other issues require attention.

One major issue requiring employers’ attention is I-9 compliance. In an Executive Order issued on January 25, 2017, titled “Enhancing Public Safety in the Interior of the United States,” President Trump directed all executive agencies to prioritize the enforcement of U.S. immigration laws. Such enforcement will very likely include more frequent and significant  audits and investigations of employers’ I-9 compliance.

A few days earlier, on January 21, 2017, the United States Citizenship and Immigration Services began requiring employers to use a new version of the I-9 form for all new hires. Employers who fail to use the proper form can be subject to civil penalties exceeding $2,000 for every improper form used. Thus, hiring 10 employees with the expired I-9 form can trigger 10 separate penalties.

Here is a link to the new form and instructions for completing it: https://www.uscis.gov/i-9. Note that unlike prior versions, the instructions are now contained in a separate document and are more detailed.

Otherwise, the new form itself contains only a few minor changes (for example, permitting the use of a P.O. Box for an address). However, there is now an “electronic” version available that includes drop-down menus and informational pop-up boxes to facilitate correct completion. This version is not mandatory, so employers can still print and complete the I-9 by hand.

While the I-9 form has been around for a number of years, its requirements are technical and proper completion requires solid training. Particularly with the new administration’s heavy immigration focus, we strongly recommend that  employers audit their I-9 processes, ensuring that all forms are properly completed and that all employees are authorized for employment in the U.S.

If you have any questions about I-9 compliance, please contact us.

BlockedIn a much-welcomed eleventh-hour ruling yesterday, the United States District Court in the Eastern Division of Texas issued a preliminary injunction enjoining the United States Department of Labor (“DOL”) from implementing changes to overtime rules under the Fair Labor Standards Act (“FLSA”) (the “Final Rule”). The Final Rule, which nearly doubles the salary threshold for the overtime exemption, was scheduled to take effect on December 1, 2016. The injunction blocks the Rule, for now. For more information on what the Final Rule would mean for you or your company, click here.

In his Memorandum Opinion and Order, Judge Mazzant found that the Final Rule’s salary increase has the effect of excluding from the exemption some 4.2 million workers who are performing exempt-type work, and that this exclusion conflicts with the FLSA.

The Court imposed the injunction nationwide, not just within its jurisdiction. Thus, the injunction blocks (or at least delays) the Final Rule for all employers.

This is not the end. The judge’s ruling is only temporary, and could be overturned later by the same court or a higher one (including the United States Supreme Court). What is certain, however, is that the Final Rule will not go into effect on December 1, 2016 as previously expected.

So what should employers do now?

If you have already changed your compensation structure to conform to the new rule, it might be unpopular to reverse those changes, although you may have the right to do so-at least temporarily. Conversely, if you were waiting until December 1 to make any changes, you may now wait until the courts (or Congress) render a final decision. It will definitely be worth watching to see what action the new administration takes with regard to defending or disowning the Final Rule, since the litigation is certainly not going to be completed before January 20, 2017.

On November 8, 2016, voters in Youngstown, Ohio approved a measure to amend their city charter and provide a “Part-Time Workers’ Bill of Rights,” which will impose significant added requirements on employers of part-time workers throughout the city. City council in Cleveland, Ohio refused to add a similar measure to its ballot. Both “get out the vote” efforts were spearheaded by Grand Rapids, Michigan business owner Robert Goodrich. Passage in Youngstown may prove to be a testing ground for future measures elsewhere in the country.

The amendment will create a Part-Time Workers’ Rights Commission to be comprised of five individuals who will serve two-year, uncompensated terms. Two members shall be representatives of employers, two shall be representatives of part-time employees, and one member shall represent the general public, all of whom will be appointed by Youngstown City Council. The Commission shall have the power, authority, and duty to do such things as advise and consult with City Council on workplace policies and conditions, recommend additional legislation to affect part-time workers, employ a staff to carry out its duties, and receive complaints regarding violations of the Bill of Rights provisions and enforce its workplace requirements.

Click here to read the full client alert.

 

With the clock counting down toward the December 1, 2016, effective date of the U.S. Department of Labor’s new overtime rules, officials from 21 states have stepped forward to try to stop the DOL in its tracks. In particular, on September 20, 2016, Texas Attorney General Ken Paxton, backed by 21 state officials from across the country, filed a lawsuit in federal court in Sherman, Texas, challenging the DOL’s rules. The lawsuit challenges the rules on several substantive and procedural grounds and seeks an injunction preventing the rules from taking effect. Secretary of Labor Thomas Perez expressed confidence that the rules will survive all legislative, judicial or other challenges. The same day, private sector groups, led by the U.S. Chamber of Commerce, filed a suit seeking the same relief in the same court.

It is clear that both sides of this battle will approach it with vigor, although it is not at all clear in whose favor the court will rule. As a result, employers who are making plans to comply with the rules as of December 1 should not abandon those plans just yet. We will follow the lawsuit closely, and we will be prepared to advise our clients as to any developments that may arise.

Employers in union settings know that they generally cannot make changes to their employees’ wages, hours and other terms and conditions of employment without first negotiating to impasse with the union. The exception to this rule has historically been that the employers could make changes, as long as they could show that their labor contract had a management rights clause that allowed certain changes to be made without bargaining. A recent decision from the National Labor Relations Board, however, will make it more difficult for employers to show that a management rights clause actually allows these types of changes to be made without bargaining.

The NLRB’s recent decision (Graymont, PA, Inc. and Local Lodge D92, 364 NLRB No. 37) involved a situation that is common in unionized workplaces. The employer and the union had a collective bargaining agreement in place with a management rights clause which provided that the employer:

[R]etains the sole and exclusive rights to manage; to direct its employees; . . . to evaluate performance, . . . to discipline and discharge for just cause, to adopt and enforce rules and regulations and policies and procedures; [and] to set and establish standards of performance for employees…

The employer relied on this clause to announce changes to the work rules and the attendance and progressive discipline policies. The union objected to this move and requested a meeting with the employer. The union also requested that the employer provide information about the changes. The employer met with the union, but took the position that it was not required to bargain over the changes (due to the management rights clause). The employer also took the position that it was not required to respond in any way to the request for information. After a single meeting with the union, the employer implemented the revised policies.

Click here to read the full client alert.

On July 13, 2016, the United States Equal Employment Opportunity Commission (“EEOC”) released a proposed revised Employer Information Report (EEO-1) (“Proposed Revision”). This slightly changes the original EEOC proposal to add compensation and hours worked data to the EEO-1 Report. An example of the proposed EEO-1 report can be found here. The EEOC has always required employers with more than 100 employees (more than 50 employees for federal contractors) to file EEO-1 Reports yearly identifying employees into 15 categories of race/ethnicity and sex and 10 job categories. Employers will now have to include employee hours worked and employee compensation information by pay band, utilizing the same twelve bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey:

$19,239 and under;
$19,240 – $24,439;
$24,440 – $30,679;
$30,680 – $38,999;
$39,000 – $49,919;
$49,920 – $62,919;
$62,920 – $80,079;
$80,080 – $101,919;
$101,920 – $128,959;
$128,960 – $163,799;
$163,800 – $207,999; and
$208,000 and over.

Compared to the original proposal, the Proposed Revision changes the due date for the “new style” EEO-1 reports from September 30, 2017, to March 31, 2018, to allow employers to utilize calendar year W-2 pay reports. Hours for salaried employees will have to be reported, either by using actual hours worked, if tracked, or by assuming a 40-hour work week.

The Proposed Revision comes after an initial comment period from February 1, 2016, to April 1, 2016. In drafting the Proposed Revision, the EEOC considered oral and written comments from employers, individuals, trade groups, civil rights organizations, and labor unions. The Proposed Revision will only become final after another 30-day comment period. Individuals have until August 15, 2016, to submit written comments to the United States Office of Management and Budget for consideration. Written comments may be submitted to: Joseph B. Nye, Policy Analyst, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC, 20503, e-mail oira_submission@omb.eop.gov. More information can be found in the Federal eRulemaking Portal here.

Overtime_Clock_Lead_Copyright_ImilianAfter months of waiting and speculation, the White House later today will release a new rule that could make more than four million Americans eligible for overtime pay. The rule will become effective in December, and will do the following:

  • Immediately double the minimum salary threshold for most white collar exempt classifications to $47,476 per year ($913 per week)
  • Adjust the minimum salary threshold for most white collar exempt classifications for inflation every three years
  • Change the way that the minimum salary is calculated so that employers can count bonuses and commissions toward as much as 10 percent of the salary threshold

Although the changes in the new rule are significant, many employers will be very relieved to learn that the White House decided not to make changes to the duties tests for the white collar exemptions at this time. Some observers, however, believe that changes to the duties tests are inevitable, and that the timing of those changes will depend largely on the outcome of the election in November.

A copy of the new rule, along with a summary from the White House of the basis for the rule, can be found here.

Employers should begin reviewing their exempt classifications and salary structures to prepare for the December effective date of the new rule. If you have questions about the rule or implementation strategies, contact a member of the Frantz Ward Labor and Employment Practice Group.

Based upon information received from a number of sources, it now appears that the Department of Labor’s controversial changes to the rules governing the white collar exemptions under the Fair Labor Standards Act will be finalized and published in the coming weeks – potentially as early as next week. Once published, it is expected that employers will have only 60 days before the new rules take effect.

Click here to read this Client Alert.