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Recommendations to Make the Corporate Holiday Party Fun, Festive, and Harassment-Free

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Around the holiday season,  a lot of employers want to celebrate in some form and fashion with their employees. Most employers don’t realize their potential liability. Potential liability is almost always there, but some simple recommendations can go along with in limiting their liability including:

  • Employers should consider hosting a holiday event outside of the traditional holiday party. A growing trend among many companies is to host corporate luncheons or volunteer events that benefit non-profit organizations. These alternatives can reduce the employer’s potential liability with regard to alcohol-related incidents and harassment complaints.
  • Likewise, instead of an employee holiday gift exchange, employers can sponsor a fundraising event for a local charity. Doing so decreases the potential for sexual harassment complaints associated with office gift exchanges. In addition, employers should avoid games, decorations, or other sexually charged traditions that could expose the company to liability.
  • As another option to help avoid incidents of sexual harassment, employers may want to consider hosting a holiday party that allows employees to invite their significant other, a plus one, or even children.
  • When planning holiday gatherings, employers should select a name for the event that is non-religious to avoid complaints of religious discrimination. Employers should also inform employees that participation in holiday gatherings, be it a corporate party or volunteer event, is voluntary.
  • When planning holiday soirees, employers should ensure that employees and guests do not consume excessive amounts of alcohol. Thus, it is strongly recommended that employers supply guests with drink tickets (generally two tickets are standard) or have a cash bar. Likewise, employers are strongly recommended to do the following: (1) close the bar one hour prior to the end of the event, (2) designate supervisors who will not drink at the event to monitor alcohol consumption of employees and guests, (3) and have a system in place to get intoxicated employees and guest(s) home safely, i.e., Uber, Lyft, or other local transportation options.
  • Prior to the corporate holiday event, employers should review their policies and procedures regarding discrimination and harassment and remind employees, through a memorandum, that all company policies will be in effect during the holiday party.

    If you need any assistance or have any questions, please contact you HR Ideas Representative.

3 Biggest Workplace Law Concerns For Breweries And Brewpubs

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s virtually all startups and small businesses know, one of the surest ways to kill a promising enterprise is to get involved in costly litigation. Breweries and brewpubs are no exception. The current rise in employment litigation shows three primary types of lawsuits to which craft beer employers should pay particular attention to avoid getting in the crosshairs of a legal nightmare.

Craft Breweries Feel Growing Pains

The craft beer industry is growing at a remarkable rate. In fact, by the end of 2015, there were approximately 4,150 breweries in the United States, with more than two new breweries opening each day. It’s estimated that approximately 450,000 employees currently work at breweries and brewpubs alone. And with craft beers continuing to increase in popularity, there are no signs that those figures will decrease in the foreseeable future.

But as the industry continues to realize spectacular growth, the number of employment lawsuits directed at breweries also continues to climb. In the last three years, court filings show that breweries and brewpubs have been involved in approximately 900 lawsuits, roughly 10% of which were employment lawsuits. The bad news is that these numbers increased significantly in 2016.

These figures are consistent across all industries, with employment lawsuits jumping 400% in the last 20 years. At present, almost half (42%) of employment lawsuits are brought against private employers with fewer than 100 employees. Notably, these figures do not include state and federal administrative agency charges or informal demands resulting in pre-litigation settlements, each of which can carry thousands of dollars in associated legal costs. There’s a common belief that the craft beer industry, with all its charm and good vibes, is not subject to the virulent and costly nature of employment disputes. But as these filings show, workplace disputes are, in fact, a real and growing concern.

But what are the most common types of employment suits brought against breweries? And what should craft breweries, brewpubs, and similarly sized hospitality employers pay attention to this holiday season? Here are three main areas of concern.

Wage Claims

Craft breweries and brewpubs have been hit with scores of wage and hour lawsuits in the last three years, particularly claims alleging failure to pay all wages due at termination, and failure to pay overtime wages. To avoid such issues, craft breweries and brewpubs should implement several processes to minimize the risk of running afoul of what often amounts to a mere technical violation.

For example, in states that require all final wages to be tendered within one business day, and where a termination decision occurs rather spontaneously, it could be a good idea to suspend the employee for one or two days before termination. This will buy you some additional time to make sure the employee’s final paycheck is accurate, and allows you to complete your investigation into the underlying situation to ensure termination is proper.

With regard to overtime claims, even with the relatively shocking November 22, 2016 court decision blocking the Department of Labor’s salary increase for “white collar exempt” workers (which would have become effective December 1, 2016), employers in the craft beer industry should nonetheless take this opportunity to revisit their overtime and compensation practices. While the regulation would have significantly increased wages for many restaurant and brewery managers, and could still be resurrected, the decision nonetheless reemphasizes the importance that employers ensure their employees classified as overtime exempt meet the “duties test.”

Employers of all shapes and sizes have found themselves on the receiving end of wage claims for misinterpreting this requirement and mistakenly categorizing their employees as exempt. Craft beer employers that currently classify employees as exempt should take the time to make sure they don’t make the same mistake.

Pregnancy-Related Claims

Pregnancy-related claims have also seen a major uptick in recent years. One of the most common pitfalls for employers has been failure to provide an employee with the same job duties upon returning from maternity leave. Breweries and brewpubs can get in trouble if they don’t know whether they are subject to federal law. That’s because the Family and Medical Leave Act (FMLA) requires businesses with at least 50 employees to restore an employee returning from maternity leave to her original job, or to an “equivalent” job, which essentially means the job cannot differ in terms of pay and benefits.

Even where breweries and brewpubs have fewer than 50 employees, however, many are nonetheless subject to state and local leave laws – which often have even more stringent requirements. For example, many states require that mothers be given the opportunity to work the same schedule they had before they went on maternity leave. This, of course, can cause tensions with other employees who worked those shift hours in the interim.

Another major pregnancy-related issue that could lead to legal liability relates to milk expression laws. More than half the states (28) have laws related to breastfeeding in the workplace. A common error employers make is failing to provide a “reasonable break time” for mothers to pump milk, or otherwise failing to provide such mothers a private area – other than a bathroom – that is shielded from view and free from intrusion of coworkers and the public.

While legislatures often provide “undue hardship” exceptions for smaller employers, the reality is that getting into a dispute with a mother needing to express milk at work is a no-win situation for any employer, no matter the size. Even if the employer can show a legitimate undue hardship, the brewery or brewpub is at risk of attracting negative publicity and diminished morale in the workforce, which can ultimately cost far more in lost sales or turnover costs than it would to accommodate the employee’s needs.

“Contractual” Disputes Regarding The Employment Relationship

Court filings over the last three years show that another common employment lawsuit for breweries and brewpubs relates to contractual disputes governing employment relationships. There are myriad ways that breweries – whether new and small or established and large – can introduce contractual agreements into the workplace relationship.

For example, it is not uncommon for breweries that are just getting started to allow people to “volunteer” at tasting events, with the understanding that there could be an employment opportunity at the brewery at some point down the road. Even though this type of arrangement is often well-meaning, the reality is that the Department of Labor and similar state regulatory entities consider such “volunteers” to be employees, meaning they are entitled to be paid at least minimum wage.

Similarly, new breweries often mischaracterize workers as “independent contractors,” when the government actually considers them employees. Getting this characterization wrong can lead to nasty and costly disputes with workers and government agencies alike over the appropriate payment of wages. To avoid falling into this trap, make sure you consult with legal counsel before designating any of your workers as a contractor. If part of your existing workforce already includes independent contractors, work with employment counsel to conduct a review and audit to make sure you’re doing it right.

Finally, court filings have also shown an uptick in litigation over trade secrets and restrictive covenants, which are likely to come into play with brew masters who are recruited to a competing business. To protect proprietary information and trade secrets, you should strongly consider having employees sign confidentiality, non-disclosure, non-recruiting, and assignment of inventions agreements. For breweries interested in restrictive covenants, you should know that the laws governing such agreements can vary significantly by state, and should be prepared – or at least reviewed – by an employment attorney for enforceability.

Conclusion

While these types of employment disputes appear to be the most common in recent years, there is no question that breweries and brewpubs have also been hit with other kinds of claims. While it is impossible to predict each brewery’s future, the more steps you take now to avoid potentially litigious employment issues, the more time you can spend winning your next gold medal brew, and less time worrying about costly personnel disputes.

ATF: Marijuana and Firearms Don’t Mix

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Much has been written in the comment section of The Shooter’s Log regarding state versus federal laws. So, this article should provide for lively debate. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has issued a clarification to language on ATF Form 4473. The clarification covers the use of marijuana in states that have legalized it for recreational or medicinal use versus federal law. In other words, it may be legal in some states, but it is still unlawful federally.

On the revised ATF Form 4473, Question 11e reads, “Are you an unlawful user of, or addicted to, marijuana or any other depressant, stimulant, narcotic drug or any other controlled substance?” This caused confusion for some in that marijuana has been “legalized” in some states.

However, the ATF is focused on federal, not state, law. To avoid further confusion, the ATF has added the following clarification to question 11e, “The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

The revised ATF Form 4473 will be mandatory for use starting January 16, 2017.

The ATF’s clarification follows a ruling issued by the U.S. Court of Appeals for the Ninth Circuit last August. In that decision, the court ruled marijuana card holders at the state (Nevada) level are barred from gun purchases .

OSHA Issues Walking-Working Surfaces Rule

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On November 17, 2016, OSHA issued a f inal rule revising and updating its general industry Walking-Working Surfaces standards specific to slip, trip, and fall hazards. The final rule includes revised and new provisions addressing fixed ladders, rope descent systems, and fall protection systems. The rule also establishes requirements on the design, performance and use of personal fall protection systems in general industry. In addition, employers must now train employees on identifying and minimizing fall hazards, using fall protection systems and maintaining, inspecting and storing fall protection equipment.

The final rule allows employers to select the fall protection system that works best for their environment, instead of requiring the use of guardrail systems, which the current rule mandates. Employers now can choose from a range of accepted options, including personal fall arrest, safety new system, ladder safety systems, travel restraint and work position systems. OSHA has permitted the use of personal fall protection systems in construction since 1994 and the final rule adopts similar requirements for general industry.

The final rule codifies a 1991 OSHA memorandum that permits employers to use Rope Descent Systems (RDS) and adds a 300-foot height limit for their use. It also requires building owners to affirm in writing that permanent building anchorages used for RDS have been tested, certified, and maintained as capable of supporting 5,000 pounds for each worker attached.

The final rule also requires that ladders be capable of supporting their maximum intended load and that mobile ladder stands and platforms be capable of supporting four times their maximum intended load. Moreover, each ladder must be inspected before initial use in a work shift to identify defects that could cause injury.

For fixed ladders that extend more than 24 feet, the rule phases in ladder safety or personal fall arrest systems and phases out the use of cages or wells. For portal ladders, employers must ensure that rungs and steps are slip resistant; portable ladders used on slippery surfaces are secured and stabilized; portable ladders are not moved, shifted, or extended while a worker is on them; top steps and caps of stepladders are not used as steps; ladders are not fastened together to provide added length unless designed for such use; and ladders are not placed on boxes, barrels, or other unstable bases to obtain added height.

OSHA drew from requirements in the national consensus standards in crafting the new rule, including ANSI/ASSE A1264.1–2007, Safety Requirements for Workplace Walking/Working Surfaces and Their Access; Workplace, Floor, Wall and Roof Openings; Stairs and Guardrail Systems; ANSI/ASSE Z359.1–2007, Safety Requirements for Personal Fall Arrest Systems, Subsystems and Components; and ANSI/IWCA I–14.1–2001, Window Cleaning Safety Standard.

OSHA anticipates that the changes provided in the final rule will prevent 29 fatalities and 5,842 lost-workday injuries annually.

The final rule becomes effective on January 17, 2017. Some requirements in the new rule have compliance dates after the effective date including:

  • Ensuring exposed workers are trained on fall hazards and the use of fall protection equipment (6 months),
  • Inspecting and certifying permanent anchorages for rope descent systems (1 year),
  • Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures (2 years),
  • Ensuring existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system (2 years), and
  • Replacing cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet (20 years).

If you should have any questions, please contact your HR Ideas Safety Representative.

OSHA Anti-Retaliation Rule Will Take Effect December 1

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This rule goes into effect December 1. During the period between December 1 and a court ruling on the merits of the case, employers that have  post-accident drug testing and incident-based safety incentive programs potentially are subject to citations by OSHA.

Employers will have to choose whether to modify their existing programs or wait until the court decides on the legality of the OSHA rule before making any changes.

If you have any questions regarding the rule or other workplace safety issues, please feel free to contact your HRI Representative.

DINER TO PAY $154K IN BACK WAGES TO 59 EMPLOYEES AFTER US DEPARTMENT OF LABOR INVESTIGATION

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Metro Diner failed to pay proper minimum wage, overtime

 

Investigation findings: An investigation by the U.S. Department of Labor’s Wage and Hour Division’s Jacksonville District Office found that Windy City Doc Holding LLC, doing business as Metro Diner, violated minimum wage and overtime provisions of the Fair Labor Standards Act.

Specifically, the employer made illegal deductions from workers’ pay when it charged servers for their uniforms – that resulted in them earning less than the legally required federal minimum wage of $7.25 per hour in the weeks that they paid for those items. The employer’s practice of sharing the tips of tipped employees with non-tipped workers, such as dishwashers, also contributed to the minimum wage violations for affected servers.

The employer also calculated overtime incorrectly when it based servers’ overtime rates on time and a half of their direct cash wages, rather than basing it on the full minimum wage, as required.

Resolution: The employer will comply with the FLSA and pay 59 employees $154,179 in back wages.

Effective 12/1/2016, New Salary Requirement for Exempt (salaried) Positions

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Effective December 1, 2016, there is a new salary requirement for the administrative, executive and professional exemptions. These are employees who get paid a salary regardless of hours worked. They’re usually your managers, engineers, executives and individual who’s decision have a major impact on your company.

21 states have filed an appeal and a decision is expected the week of January 21st. However, the presiding judge has already stated the he is not taking into account the president elects view on the matter. HRI recommend that you should be prepared to pull the trigger on 12/1/2016.

What is the New Federal Salary Requirement?

The new federal rule increases the salary requirement for exempt executive, administrative and professional employees from $455 per week to $913 per week effective December 1, 2016. There is also a provision built in to provide automatic increases to the salary test every three years, beginning January 1, 2020.

The changes to the federal overtime rule mean that the federal salary test is now relevant for all states effective December 1.

For administrative, executive and professional employees to continue to be exempt under both California and federal law, California employers will need to follow:

• The federal salary test of $913 a week, because it is now more protective than California’s test.
• The California duties test, because it is still more protective of employees. Although the federal agency has put emphasis on the 51% rule.

Does the New Federal Salary Test Apply to All Exemptions?

No. The new federal salary test applies only to the executive, administrative and professional exemptions:
• Employees classified as exempt under California’s outside sales, commissioned inside sales, and computer professional exemptions do not have to meet the new federal salary test. They must meet any applicable California salary requirement.
• The federal salary test does not apply to teachers (if their primary duty is teaching in an educational establishment), or to licensed lawyers or doctors (bona fide practitioners of law or medicine) because under federal law, these employees do not have to meet the salary test to be classified as exempt under the professional exemption.
• However, California requires teachers, lawyers and doctors to meet both a duties and salary test under the professional exemption. If you employ teachers, doctors or lawyers, they must still meet the California salary requirement.

Do Bonuses and Commissions Count Toward the Salary Test?

Not in California. The new federal rule amends the federal salary basis test to allow employers to use nondiscretionary bonuses and incentive payments to satisfy a portion of the new salary test. However, California law does not allow such payments to be used to meet the salary test, so this change in the law also does not affect California employers.

Does the Highly Compensated Employee Exemption Apply in California?

No. California does not provide a “highly compensated employee” exemption.

Under federal law, certain “highly compensated employees” can be exempt by meeting only a minimal duties test if their compensation exceeds a certain amount. The new federal rule increases the annual compensation requirement for the federal “highly compensated employees” exemption.

How California Employers Can Prepare for the Federal Overtime Rule?

• Increase Salaries to Retain Exempt Status
• Reclassify Employees as Nonexempt CAREFULLY

Delivery of the News that an Exempt Employee is being reclassified as Non-Exempt Can by Tricky

Employees may questions if there were always non-exempt or it may affect their moral. You need to have a strategy and ensure that all your managers understand the reason and provide the same information to the employees.

Can a Supervisor or Manager be non-exempt?

Absolutely! An hourly employee can have management title and responsibilities and be paid by the hour. Keep in mind, they have to clock in/out including for lunch and they need to be paid overtime as any other hourly employee.

 

Click Here to download the DOL Exempt Overtime Factsheet

10 Things You Need To Know About EEOC’s New Retaliation Guidance

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On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) released its Enforcement Guidance on Retaliation and Related Issues. The document is a helpful tool for employers when navigating the often-treacherous retaliation road, and will be used by agency investigators, plaintiffs’ attorneys, and courts as a guidepost when examining employer actions. Here are 10 things you need to know about the guidance in order to stay up to speed.

1. The Guidance Is Not Gospel.

First things first: this guidance is not controlling law. It is not on par with statutes, regulations, and court decisions. However, that does not mean that you should ignore the document. Not only does it compile a treasure trove of controlling authority in the form of case citations and references to law, but courts will often look to agency guidance when called upon to examine a thorny issue.

2. The Guidance Was Necessary.

This guidance replaces the agency’s discussion on retaliation contained in its 1998 Compliance Manual, the last such document on the topic. A lot has changed in the intervening 18 years, necessitating the updated and revised document. Most notably, the number of retaliation claims filed against employers each year has skyrocketed.

In 2015, for example, nearly 40,000 EEOC retaliation charges were filed against employers, an all-time high and a 119% increase since 1998. Moreover, retaliation charges have been the most frequently alleged claims filed with the agency since 2009, accounting for over 44% of all charges in 2015.

3. The Guidance Covers A Broad Array Of Claims.

The guidance covers all of the types of retaliation claims governed by the EEOC, which includes Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), the Equal Protection Act (EPA), Title II of the Genetic Nondiscrimination Act (GINA), and Section 501 of the Rehabilitation Act.

4. The Guidance Discusses What Activity Is “Protected.”

Not every employee action can form the basis of a retaliation charge; only a certain kind of “opposition” will serve as a valid basis. The EEOC guidance states that opposition will only satisfy this standard if it is reasonable, and that the employee must base the opposition on a good faith belief that the employer conduct is, or could become, unlawful.

The original draft of the guidance, proposed by the EEOC in January 2016, took several positions that seemed contrary to current controlling authority on the subject. Therefore, Fisher Phillips submitted comments to the agency in February 2016 with the aim of ensuring a balanced approach. The final version of the guidance includes several revisions suggested by the firm that will aid employers when it comes to defining “opposition.”

For example, the initial version minimized the impact of a helpful 2001 Supreme Court case on retaliation, Clark County School District v. Breeden. The firm comments requested that the agency elevate the discussion of Breeden from a mere footnote so that it could “play a more central role in the opposition section.” The comments also suggested that the agency adopt a more deferential attitude towards the case, given that it stands as controlling law over all federal courts and agencies, including the removal of language marginalizing the case as having “unusual facts.”

The final guidance does just that, removing such dismissive language, elevating the Breeden discussion to its own section, and affording employers with ample authority to defend claims on the opposition standard.

5. The Guidance’s Discussion On “Adverse” Conduct Takes An Expansive Approach.

The guidance follows the Supreme Court’s 2006 pronouncement in Burlington Northern v. White which decided that a “materially adverse action” subject to challenge under anti-retaliation provisions encompass a broader range of actions than an “adverse action” subject to challenge under typical statutory non-discrimination provisions. Therefore, the agency provides a laundry list of employer activities that could form the basis of an “adverse” action under retaliation theory.

While most employers understand that demotions, suspensions, and terminations can justify a retaliation claim, the guidance also points out that actions such as threats, warnings, low evaluations, and transfers could be enough to dissuade an employee from engaging in protected activity, thus satisfying the second prong of a retaliation claim.

6. The Guidance Discusses The Key “Causation” Element.

Fisher Phillips’s comments on the agency’s proposed “causation” standard were the most extensive because the firm believed they were most in need of revision. Critically, the initial EEOC proposal was dismissive of another helpful Supreme Court case, University of Texas Southwest Medical Center v. Nassar (2013). That case was particular critical of the agency’s 1998 Compliance Manual position on retaliation, expressly rejecting the guidance as lacking in persuasive force and failing to address the specific statutory language. It called the agency’s conclusions, in fact, “into serious question.”

Nassar established important principals in this field, focused mainly on the standard a worker would need to establish in order to advance a viable claim of retaliation. The initial agency proposal offered but a brief mention of Nassar and this standard, and included a discussion of the EEOC’s preferred lower standard that had been rejected by the Supreme Court. The finalized guidance corrects this misstep, creating an entire section to discuss the proper “but-for” causation standard that should apply in cases against private employers.

The firm’s comments also pointed out to the agency that its original proposal included a detailed discussion of the many ways in which a causal link could be found between an employee’s activities and an employer’s adverse action, but not much on how employers could demonstrate the opposite: that no actionable retaliation took place.

The agency responded to this suggestion by creating an entire new section entitled “Examples of Facts That May Defeat a Claim of Retaliation,” which employers should find helpful when responding to charges of retaliation. It includes examples such as poor performance, inadequate qualifications, negative job references, misconduct, reductions in force or downsizing, and others.

7. The Guidance Includes A “Promising Practices” List.

The guidance offers employers a list of five suggestions that it believes will reduce the risk of violations. It revised the list from being called “best practices” in the proposed version to “promising practices” in the final guidance because, according to the EEOC, “there is not a single best approach for every workplace or circumstance.”

The guidance recommends (a) implementing a written anti-retaliation policy; (b) training all supervisors on the anti-retaliation policy; (c) providing advice and individualized support for those who could be in a position to retaliate and those who could be in the firing line for retaliatory action; (d) proactively following up after protected activity or opposition has taken place; and (e) reviewing your internal employment actions to ensure full compliance with the EEO laws on retaliation.

While most of these actions are fairly intuitive and are part of most employers’ thorough and mature human resources compliance efforts, we recommend specifically citing to these “promising practices” when defending against charges of discrimination.

8. The Guidance Tackles ADA Interference Claims.

The guidance points out that, unlike other statutory claims, the ADA also contains a non-interference provision which prohibits actions getting in the way of employees exercising or enjoying their ADA rights. It goes beyond simple retaliation protection, offering coverage for anyone who is subject to coercion, threats, intimidation, or other interference with respect to ADA rights. The guidance delves into this topic by providing five hypothetical scenarios demonstrating statutory violations and a bullet point list of prohibited tactics.

9. The Guidance Reminds You To Not Take It Personally.

The guidance concludes with the agency pointing employers towards an article written by an EEOC manager regarding how supervisors should respond if accused of discrimination or harassment. In the article entitled, “Retaliation – Making It Personal,” the EEOC acknowledges that it may be difficult for managers not to take EEO allegations personally, but cautions them not to take actions that could be perceived as retaliatory.

Some suggestions include avoiding public discussion of the allegation, keeping sure not to isolate the complaining employees, avoiding reactive behavior, not interfering with the EEOC process, and avoiding making threats to the employee in question.

10. The Guidance Is Complemented By Other Resources.

Aside from the guidance, the agency also issued two short user-friendly resource documents: a question-and-answer publication summarizing the guidance document, and a short Small Business Fact Sheet condensing the major points in the guidance in non-legal language. Combined they form a helpful collection of material with which you will want to familiarize yourself. Whether developing policies, conducting training, responding to charges of discrimination, or otherwise defending your organization’s actions, these materials should be the part of every human resource professional’s toolkit.

If you have any questions or need further assistance, please contact your HR Ideas representative at 925-556-4404.

Fifth Circuit Overturns $226,000 Fine Imposed on a Staffing Company for Completing Section 2 of Form I-9 Remotely

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The Department of Homeland Security (DHS) takes the position that employers must physically review original documents in the actual presence of a new hire when completing the attestation in Section 2 of the Form I-9 (the attestation is a statement from the employer indicating the employer reviewed the new hire’s documents and the documents belong to the new hire). In other words, DHS prohibits employers from reviewing copies of documents remotely or via video when completing a Form I-9. In a decision published on August 11, 2016, the United States Court of Appeals for the Fifth Circuit found that a Minnesota staffing company was not liable for a $226,000 fine it received when it completed Section 2 in Minnesota after reviewing copies of the Form I-9 documents presented by new hires located in El Paso, Texas.

While the Fifth Circuit’s holding contradicted ICE’s position on Section 2 requirements, the holding focused solely on the notice due to employers when administrative agencies assess penalties for violations of ambiguous laws. The court even notes at the conclusion of the opinion that DHS has discretion to require employers to follow certain procedures for completing Section 2 within the confines of the INA. In fact, since 2013, DHS has done so, and noted in its guidance that the Section 2 attestation must be completed by an individual who reviews original documents within the physical presence of an employee.

Clients with questions regarding Form I-9 practices should consult your HR Ideas representative.

4 more rules the NLRB says to cut from your handbooks now

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The National Labor Relations Board (NLRB) has struck again in the name of protecting employees’ speech rights.

The result for employers: more communication policies are being tagged “illegal.”
On top of that, the NLRB’s rulings are binding for non-unionized employers as well as unionized shops. So everyone’s got to pay attention and heed its warnings.

What’s on the chopping block now?

The most recent policies to go through the NLRB’s shredder belonged to Casino Pauma, an Indian casino in Pauma Valley, CA.

After receiving a charge that the casino’s employee handbook contained overly broad rules, an NLRB administrative law judge struck down four of the casino’s policies.

They are:

A rule against conducting personal business on casino property. Specifically, the part of the rule the NLRB had a problem with was the part that banned employees from being on casino property when they weren’t working. The judge said the rule “unlawfully restricts off-duty employees from engaging in protected activity [i.e., talking about working conditions]; and it prohibits protected activity during nonworking time.”
A rule against solicitation and distribution. The rule banned all solicitation and distributions if the intended recipient expresses any discomfort or unreceptiveness. The judge said the rule was unlawful because it prohibited protected solicitation and distribution — i.e., talking about or distributing union materials.

A rule requiring an online disclaimer. It required employees to use a company disclaimer if they posted content to any blog, website or social media site about work. The judge said the rule essentially hindered employees’ ability to participate in protected activity/speech. (Note: This was perhaps the least surprising of the smackdowns, since the NLRB had previously ruled against requiring employees to use similar disclaimers.)

A rule to stop conflicts of interest. The rule required employees to receive the general manager’s written approval prior to soliciting employees, guests, suppliers or members from purchasing goods or services of any kind or to make contributions to any organizations, or to ask for support for any causes.

The judge said the rule was unlawful because it required advance approval before employees could participate in protected solicitation.

The punishment:

Thankfully for employers like Casino Pauma, the NLRB doesn’t have the power to issue fines for these types of violations of the NLRA.

The most common consequences for employers with policies deemed illegal:

rescinding such policies and rewriting them
posting notices of the changes in a public location
rescinding any disciplinary action against employees for violating those policies (including rehiring any terminated employees with back pay), and
clearing the names of offending employees.

In Casino Pauma’s case, the NLRB required it to rescind the unlawful language in its policies and handbook and republish the handbook without it. The judge said the casino could satisfy this requirement by supplying employees with handbook inserts explaining the corrective measures.