The U.S. Citizenship and Immigration Services released a new version of the I-9 form on March 8, 2013. The new form is substantially the same as the one it’s replacing, but has some additional requirements for foreign passport information, e-mail address and phone numbers.
The “phase in” time for the new form is relatively brief, and all new hires as of May 7, 2013 must complete the new version.
Click here for a copy of the new I-9 form.
In line with its recent and ever-expanding interpretation of the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has once again found an employer’s social media and confidentiality policies unlawful. DirecTV maintained a social media policy that prohibited employees from blogging or posting messages on social media that disclose non-public company information. DirecTV also maintained a confidentiality policy that prohibited employees from discussing details about their job and the company’s business, projects, customers, and employees.
With respect to DirecTV’s social media policy, the NLRB found that an employee could reasonably construe the phrase “company information” as pertaining to records that included employee wages, disciplinary actions, etc. The phrase “company information” was ill-defined in the policy, therefore the NLRB found it to be, at a minimum, ambiguous and unlawful because employees could believe that it interfered with their rights under the NLRA to engage in protected concerted activity. With respect to the confidentiality policy, the NLRB found that it was too broad and could be interpreted by employees to restrict their right to discuss the terms and conditions of their employment with co-workers, “union representatives, Board Agents and other governmental agencies;”—once again, a violation of the right to engage in protected concerted activity.
Employers are advised to review their policies to ensure that employees are not restricted from discussing the terms and conditions of their employment in any forum and that phrases and terms used in employee policies are clearly defined.
The answer is yes, if House Majority Leader Eric Cantor has anything to say about it.
On February 5, 2013, Cantor delivered a speech at the American Enterprise Institute (AEI) entitled “Making Life Work” that set forth the agenda the House majority is expected to pursue over the next two years. One of the proposals outlined in Cantor’s plan to “make life work” was that private employers should be afforded the flexibility to allow employees to convert overtime to comp time.
In 1938, Congress enacted the Fair Labor Standards Act (FLSA), which requires that most non-exempt workers receive not less than a minimum wage and establishes a standard 40-hour work week for most workers. The law provides that covered employees must receive overtime pay for each hour they work in excess of 40 hours in a single work week. Overtime pay is paid at the rate of 1½ times the employee’s regular rate of pay. In 1985, Congress permitted state and local governments to compensate their employees’ overtime hours with paid time away from work (compensatory time or “comp time”) in lieu of overtime pay. Here’s how comp time generally works in the public sector: Instead of being paid in cash for the overtime hours, the employee is allowed to accumulate and take time off in the future with pay on the basis of 1½ hours of paid time off for each actual hour of overtime worked. To date, this type of comp time option has not been extended to private sector employers. Indeed, private sector comp time is unlawful except in certain limited situations.
According to Cantor, “Federal laws dating back to the 1930s make it harder for parents who hold hourly jobs to balance the demands of work and home. An hourly employee cannot convert previous overtime into future comp time or flextime. In 1985, Congress passed a law that gave state and municipal employees this flexibility, but today still denies that same privilege to the entire private sector. That’s not right.”
“Imagine if we simply chose to give all employees and employers this option,” Cantor said. “This is the kind of common sense legislation that should be non-controversial and moves us in the right direction to help make life work for families.”
Cantor’s plan seemingly calls for amendment of the FLSA to permit a private sector employer to offer, and an employee to receive if they so choose, comp time in lieu of overtime pay. Such a proposal would not be unprecedented, as bills on this topic have been repeatedly introduced in Congress; most recently in 2009 under the title the “Family-Friendly Workplace Act.” So why is private sector comp time of interest now? In the midst of general Congressional gridlock, both political parties seemingly have something to gain by passing a comp time amendment: Republicans can tout the amendment as a cost-saving advantage for employers and Democrats, as a way to provide employees with additional paid time-off (anyone remember the Ohio Healthy Families Act: A Bad Diagnosis and a Worse Prescription. ); see Bill Clinton Pushes for Paid Sick Leave Alongside House Democrats.
Obviously, there are pros and cons to any piece of legislation, including private sector comp time. It is, however, ironic that compensatory time in the public sector was devised as a means of dealing with public employer financial concerns. Yet in the private sector, comp time legislation has been branded as a way to provide workplace “flexibility.” Certainly allowing comp time in the private sector has the potential to affect both employers and employees. We will keep you posted as to any developments on the comp time front.
Effective January 1, 2013, a new law went into effect in Illinois barring employers from seeking password or other social media account information from any employee or prospective employee. Illinois now joins 5 other states – California, Delaware, Michigan, Maryland and New Jersey – in having such a law. Therefore, an employer in Illinois cannot condition employment or continued employment on an employee’s willingness to allow the employer unfettered access to the employee’s social media presence. However, Illinois’ new law also offers protection for the employer’s right to promulgate proper workplace policies as well as to maintain control over its own electronic equipment and monitor employee use thereof. The Illinois law is codified at 820 ILCS 55/10.
As of January 1, 2013, minimum wage employees in Ohio received a 15-cent increase, bringing their wages to $7.85 an hour. http://www.com.ohio.gov/laws/MinimumWageLaws.aspx For employees who receive tips, the new minimum wage increased to $3.93 an hour, an increase of 8 cents an hour.
The state minimum wage is adjusted annually because of an amendment to the Ohio Constitution approved by voters in 2006. Increases are linked to the Consumer Price Index. A year ago, the minimum wage jumped 30 cents at the beginning of 2012.
In cases where an employee is subject to both the state and federal minimum wage laws, the employee is entitled to the higher of the two minimum wages. The federal minimum wage is $7.25 per hour, which is 60 cents lower than Ohio’s new minimum wage. Accordingly, Ohio employers will need to comply with the state minimum wage.
Nine other states increased minimum wage rates on January 1, 2013. Here's a list of the states and the new minimum wage for each location.
Michigan Governor Rick Snyder has signed into law "right to work" legislation that will prohibit requirements that a worker join or contribute to a labor organization as a condition of employment. The legislation was introduced last Thursday and passed amid a firestorm of controversy over worker rights. For more on the law's passage and the debate surrounding it, see our Alert, Michigan passes right to work bills as national debate over role of unions continues.
The Supreme Court is considering who is a “supervisor” – a key question, because employers may be liable for workplace harassment by supervisors. We recently advised guests of our annual seminar that the United States Supreme Court would be hearing oral arguments this week in the appeal of Vance v. Ball State University, 646 F.3d 461 (7th Cir. 2011). The Supreme Court is expected to decide whether a person without authority to hire, fire, demote, promote, transfer, or discipline individuals is a “supervisor” for Title VII purposes. The decision may expand the scope of potential liability for employers. For more on the arguments heard yesterday by the Supreme Court, visit http://www.reuters.com/article/2012/11/26/us-usa-court-ballstate-harassment-idUSBRE8AP11Y20121126?feedType=RSS.
Does your company’s leave of absence policy include an inflexible maximum limit on the length of a leave of absence? If it does, here’s a reason to review it: On November 8, 2012, the EEOC settled a disability discrimination lawsuit for close to $5 million with a national trucking company that maintained a policy that automatically terminated employees once they exhausted a maximum leave period and allowed no return to work restrictions. www.eeoc.gov/eeoc/newsroom/release/11-9-12.cfm
As we’ve previously written about here, EEOC on ADA: One rule -- no boundaries, the EEOC takes the position that leaves extending beyond the FMLA's 12-week maximum may be required as a reasonable accommodation under the ADA. In the last several years, the EEOC has sued a number of employers for maintaining ‘inflexible” leave policies that result in termination after a specified period of leave without an individualized assessment of an employee’s need for continued accommodations required by the ADA. These cases have resulted in multi-million dollar settlements along with consent decrees that include terms affecting the companies’ operations, policies and practices. [ 2011 EEOC ADA settlement ].
The recently settled case against Interstate Distribution Co. is yet another example of the type of policies that the EEOC is targeting. The EEOC claimed that under Interstate’s policy injured or ill employees who exhausted a 12 week period of maximum leave were fired and were not allowed to return to work with restrictions. The EEOC sued Interstate in September 2012 on behalf of a class of employees alleging that the company’s “inflexible” leave policy violated the ADA by failing to provide additional leave as an accommodation and by refusing to accommodate any restrictions relating to the employees return to work. Indicating that the targeted policy was maintained by the Interstate’s former owners, the company agreed to the multi-million dollar settlement less than two months after the EEOC filed suit.
Targeting inflexible leave policy remains a high priority on the EEOC’s enforcement agenda. In fact, in its recent draft Strategic Plan the EEOC reiterated its intention to aggressively pursue employers who maintain inflexible leave policies stating that it is actively looking for cases it can bring.
How can an employer avoid getting caught in the EEOC’s enforcement juggernaut? As we discussed at our 2012 Employment Law Seminar on November 8, 2012, here are some steps that an employer should take:
On October 11, 2012, the Supreme Court of Ohio issued its opinion in State ex rel. Rouan v. Indus. Comm. The Court determined that the appellant, Rouan, was not entitled to Temporary Total Disability Benefits (TT) through her workers’ compensation claim after taking a disability retirement from work.
Rouan began receiving TT in 2004 following a work-related injury. She then applied for a disability retirement based on “major depressive disorder,” a condition that was not related to her work-related injury. The work-related injury claim conditions reached Maximum Medical Improvement (MMI) in May of 2005, while her application for a disability retirement was later approved and then backdated to February 1, 2005. However, Rouan did not re-enter the workplace after she retired.
In 2007, Rouan then applied for Permanent Total Disability under her workers’ compensation claim. This application was denied as the Ohio Industrial Commission found that the conditions in Rouan’s workers’ compensation claim did not preclude her from remunerative employment.
Rouan’s workers’ compensation claim then became further recognized for two additional conditions and she requested TT. This request was also denied. The Ohio Industrial Commission found that Rouan voluntarily abandoned her employment when she took her disability retirement.
On further appeal, the Supreme Court of Ohio stated that the two leading considerations in cases like Rouan’s are “(1) was the retirement precipitated by the workplace injury and (2) did the claimant remain in the work force after retiring?” In this case, Rouan’s retirement was related to a condition that was outside of her work-related injury and she never re-entered the work force. Accordingly, the Court determined the denial of TT was appropriate as Rouan’s retirement annulled the causal relationship between her work-related injury and her absence from the workforce.
As this case shows, it is important for employers and their workers’ compensation partners to pay close attention to all of the conditions affecting an employee’s ability to work, not just the condition that spawned the workers’ compensation claim. Such attention can be critical in limiting an employer’s workers’ compensation responsibilities.
Ohio’s fair employment practices statute, R.C. §4112.01 et seq., is complicated to navigate and can result in claims from employees who have not been on an employer’s roster for years. In addition, it can lead to employers being forced to defend claims on two fronts: before the Ohio Civil Rights Commission and in court. Senator William Coley (R-Middletown), however, has sponsored a bill intended to fix the statute’s most significant pitfalls and, in the process, make Ohio a more enticing location for relocating businesses.
In particular, Coley seeks passage of Senate Bill 383, which would amend the Revised Code to implement the following changes to employment discrimination law in Ohio. If passed, S.B. 383 would:
Although passage of S.B. 383 likely will not occur during the upcoming lame-duck session, Senator Coley has indicated that he will re-sponsor the bill when the new General Assembly convenes. We will keep you posted.
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