SOCIAL MEDIA POLICIES · 2018-07-09 · The Golden Rule: ... W & M Welding, Inc., Apr. 15, 2014 Missouri Supreme Court abandoned the standard ... • Employers should develop a well-publicized

© 2014 Husch Blackwell LLP. All Rights Reserved.1

Updating Your Workplace for 2015 And Beyond

Curtis R. Summers and Robert J. Rojas

SOCIAL MEDIA POLICIES


Social Media Policies: NLRB Launches Attacks

Social Media & The NLRA

Unionized & nonunioned workforces

“Concerted activity” involving discussion of terms and conditions of employment protected under § 7

"Sweeping" social media policies may unlawfully restrain protected activities


NLRB Spotlight on Social Media Policies Three D LLC, No. 34-CA-012915 (NLRB)

Facebook “Like” constituted protected activity “Internet/Blogging” policy prohibiting “inappropriate discussions” on the

company considered overbroad

Prof’l Elec. Contractors of Conn., No. 34-CA-071532 (NLRB)̶ “Unlawful” rules prohibited, among other things, (1) Photos, videos, other

recordings at work, and (2) “boisterous” activity

Kroger Co. of Michigan, No. 07-CA-098566 (NLRB) Invalidated disclaimer required in every social media post where:

Employee identified self as Kroger employee and

Conveyed “work related information”

NLRB Approved Policy Language

"Employees are prohibited from posting or displaying comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer's workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic."


Social Media Takaways

Could the policy be reasonably construed to prohibit concerted activity?

Define the policy’s scope (and employer’s interests) with examples of prohibited conduct

Savings clause will not negate unlawful policy provisions, but it doesn’t hurt

Avoid onerous compliance requirements

Carefully consider adverse action

BACKGROUND CHECKS


EEOC Guidance: Background Checks The EEOC and the Federal Trade Commission

(FTC) issued joint guidance on March 10, 2014. The EEOC enforces federal antidiscrimination laws

The FTC enforces the Fair Credit Reporting Act (FCRA), which regulates the use of information acquired by employers from a consumer reporting agency

Before getting background information: EEOC: Fairly choose who to check

FTC: Give notice and get the employee/ applicant's signed permission

EEOC Guidance: Background Checks Using background information: FTC: Provide notice before and after any

adverse employment action based on the background information

EEOC: Take special care when basing employment decisions on background problems that may be more common among people in certain protected classes The Golden Rule: Background Checks must be job

related and consistent with business necessity


EEOC Targets Employer's Use of Background Checks

EEOC targeted BMW and Dollar General's use of background checks

Alleges disparate impact on black job applicants in violation Title VII of the Civil Rights Act of 1964 BMW: blanket exclusion without individualized

assessment

Dollar General: conditioned job offers on criminal background checks

Argues policy is not job related and consistent with business necessity

Background Checks Takeaways

Revisit policies on background checks and applicants with criminal histories Blanket requirements are highly suspect

Policies barring individuals with certain criminal convictions are problematic

Each individual’s circumstances are factually different, and so, each individual should be evaluated on a case-by-case basis


Background Checks Takeaways

Before rejecting a job applicant based on the results of a criminal background check, ask yourself: Is the a job-related reason why an individual with

that particular criminal history should not be working in that position; and

Is there a valid business need for rejecting an applicant with that specific background.

ANTI-RETALIATION AND WHISTLEBLOWER

PROTECTIONS


Workers’ Compensation Retaliation in Missouri

For decades, Missouri courts applied an “exclusive causation” standard

A high bar for plaintiffs resulted in few cases

Templemire v. W & M Welding, Inc., Apr. 15, 2014

Missouri Supreme Court abandoned the standard

Adopted the “contributing factor” analysis used in MHRA and common law cases

Uptick in workers’ compensation retaliation claims

Whistleblower Protections

Dodd-Frank Wall Street Reform and Consumer Protection Act

SEC provides whistleblower awards for “original information” resulting in successful SEC enforcement action in excess of $1 million Effective August 2011 Award: 10-30% of total monetary SEC

sanction Virtually anyone can be a whistleblower



August 2014: $300,000 to compliance or internal audit officer (20% of penalty assessed)

September 2014: $30 million to non-U.S. resident Highest award granted

13 others in the same action with the second largest at $14 million


Lawson v. FMR LLC, March 4, 2014 Plaintiffs alleged retaliation for expressing accounting

concerns in the mutual fund industry related to portfolio manager compensation

Mutual fund companies structured so they do not have employees, relying instead on independent investment advisors

U.S. Supreme Court addressed whether SOX allows retaliation lawsuits by only employees of public companies or also by those of its contractors as well

Held: SOX whistleblower protections extend to employees of a public company’s private contractors and subcontractors


Retaliation and Whistleblower Takeaways Robust anti-retaliation policies are increasingly

important

Clear and documented communication to employees, including training

Multi-avenue reporting procedures, including the ability to report anonymously

Establish guidelines for initiating and conducting investigations

Give management the tools and power to remedy issues

In the end: responsiveness is key

CORPORATE WELLNESS PROGRAMS


Corporate Wellness Programs

Pros: Reduce healthcare costs;

Emphasize employee health;

Increased productivity.

Cons: Employee refusal to participate;

Legal uncertainty.

EEOC Targets Wellness Programs

EEOC targeting wellness programs because of “involuntary” participation in wellness programs

ADA § 12112(d): prohibits employer from requiring employee to answer disability-related questions or complete a medical exam Exception: related to the job or consistent with business

necessity



“Voluntary” v. “Involuntary” Participation

EEOC v. Flambeu, Inc. Stated nonparticipation consequences:

cancellation medical insurance, “disciplinary action,” or pay full premium to remained covered

Employee had medical insurance cancelled and required to pay 100% premium cost v. participating employees paying 25% premium cost


“Voluntary” v. “Involuntary” Participation

EEOC v. Orion Energy Systems

Nonparticipation: $50-per-month nonparticipation fee and required employee to pay full monthly insurance premium


Wellness Program Takeaways

Provide incentives and encouragement for participation

Do not penalize or sanction employees who do not participate Avoid financial penalties or shifting costs of

premium payments to nonparticipants

ADA safe harbor provision for bona fide benefit plans 11th Circuit approval: Seff v. Broward County,

691 F.3d 1121 (2012)

Questions?

ContactCurtis R. [email protected]

Robert J. [email protected]

© 2014 Husch Blackwell LLP. All Rights Reserved.

1

Outdated and Antiquated: Applying 1930s Wage and Hour

Laws to a 2015 Workforce

Jeffrey D. Hanslick and Ben A. McMillen

© 2014 H usch B l ack we l l LLP

56446081

7008 70647764

8126

2009 2010 2011 2012 2013 2014

FLSA Lawsuits on the Rise


2


DOL Enforcement Actions(Also) on the Rise

879,626

1,066,1881,213,182

1,377,441 1,339,029

FY2009 FY2010 FY2011 FY2012 FY2013

Hours Spent on DOL Enforcement Actions


DOL Enforcement Actions(Also) on the Rise

$172,615,125 $176,005,043

$224,844,870

$280,697,546

$246,954,412

FY2009 FY2010 FY2011 FY2012 FY2013

Back Wages Awarded Through DOL Enforcement Actions


3


Managing the Risks


Self Inquiries

Generally, employers should, on a fairly regular basis, ask themselves thefollowing questions:

• Is every non-exempt employee paid the required minimum wage?

• Is every non-exempt employee paid the required overtime?

• Are non-exempt employees accurately recording all work time, includingpreparation time?

• Can the company prove that all of its exempt employees meet therequirements? If so, are they paid properly?

• Are all required posters displayed?


4


Lay Down the Law

Employers must publish and enforce policies prohibiting “off the clock” work, andconfirm with periodic audits that employees are abiding by those policies.

Employees should be required to acknowledge in writing that they understand thepolicies and procedures. In addition, employers should train employees onexpectations regarding job duties and timekeeping.

The policies themselves should define “working time,” with examples that target themost common misconceptions among particular employees. Employers shouldimpose appropriate discipline for policy violations.


Leave it at Work

Consider “turning off” email, voicemail, or other technology access outsideof normal business hours to prevent non-exempt employees’ ability to workat times that you don’t want them working.

While this could lead to morale issues (i.e. “You don’t need me anymore?”),it can help to control working outside of normal business hours.

• Employers should develop a well-publicized complaint procedure thatencourages employees to report concerns.

• At the same time, employers should require prompt reporting of off-the-clock work within 72 hours of its occurrence.


5


“That’s What [Training] Do”

Employers must train human resources and supervisors. It is critical toeducate your company about the serious nature of these lawsuits, theapplicable laws and regulations, and ways to minimize the chances of yourcompany being targeted.

Human resources personnel and supervisors should have training aboutpayroll and timekeeping rules, data retention, job descriptions, and

performance evaluations.


Go team! Also, please pay me.

For many years, most NFL cheerleaders have received a small payment foreach game they work. For the Tampa Bay Buccaneers, the per-game paymentis currently $100. The $100 would likely meet the minimum wage requirement ifthe cheerleaders only worked at the games, since games last only four hours orso.

A cheerleader is now questioning the total wage calculation in a complaint filedin federal court. The complaint lists several other time-consuming commitmentsthat the Buccaneers allegedly require their cheerleaders to fulfill. Among themare fifteen hours of practice each week and forty hours of communityappearances annually.

When the mandatory practice and other hours worked are figured in to theBuccaneer cheerleaders’ wage, the complaint alleges that the cheerleadersreceive far less than the minimum wage for the time they put into their NFLjobs. In fact, the plaintiff’s attorney claims the cheerleaders receive just $2 anhour as Buccaneer employees.


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WHAT IS THE CONTINUOUS WORKDAY?


WHAT IS COMPENSABLE

TIME?


7


WHAT ACTIVITIES ARE INTEGRAL AND INDISPENSABLE?


WHAT IS DE-MINIMISWORK?


8


DO I HAVE TO PAY FOR WORK I DID NOT

REQUEST?


DO I HAVE TO PAY OVERTIME FOR WORK OVER 8

HOURS PER DAY?


9


CAN I FORCE MY EMPLOYEES TO WORK OVER 8

HOURS PER DAY?


DO I HAVE TO PAY AN EMPLOYEE OVERTIME FOR WORKING ON A HOLIDAY, SATURDAY,

OR SUNDAY?


10


DO I HAVE TO RECORD EVERY

HOURLY EMPLOYEE’S TIME

EVERY DAY?


DO I HAVE TO PAY FOR ALL TIME

WORKED IF THE EMPLOYEE DOES

NOT REPORT IT ON HIS/HER TIME CARD?


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HOW LONG DO I HAVE TO KEEP MY WAGE AND HOUR

RECORDS?


IF A WORKER AGREES IN WRITING THAT

HE/SHE IS AN INDEPENDENT

CONTRACTOR, DO I HAVE TO PAY HIM/HER

OVERTIME?


12


CAN I GIVE EMPLOYEES

COMPENSATORY TIME OFF RATHER

THAN PAY OVERTIME?


IF AN EMPLOYEE WANTS TO WORK

OVERTIME AND WILL ACCEPT STRAIGHT TIME, CAN HE/SHE

WAIVE THE RIGHT TO OVERTIME PAY?


13


MAY I DEDUCT FOR LOANS OR

ADVANCES?


DO I HAVE TO PAY VOLUNTEERS?


14


DO I HAVE TO PAY INTERNS?


DO I HAVE TO GIVE MY EMPLOYEES A LUNCH BREAK?


15


WHEN DO I HAVE TO PAY FINAL WAGES TO

A TERMINATED EMPLOYEE?


DO I HAVE TO PAY FOR AN EMPLOYEE’S

ON-CALL TIME?


16

Questions?

ContactJeffrey D. [email protected]

Ben A. [email protected]


Employee Benefits Update: Preparing for 2015 & Beyond

Molly A. Callender and Uche A. Enemchukwu

Overview

Affordable Care Act – “Play or Pay” Employer Mandate

Year-End Employee Benefit Action Items


Affordable Care Act – “Play or Pay” Employer Mandate

Employer Shared Responsibility –General Rule

Each applicable large employer is required to offer minimum essential coverage to a specified share of full-time employees (and their dependents), or face penalties.


Employer Shared Responsibility –Breakdown

Applicable Large Employer

Full-Time Employees

Penalties

Minimum Essential Coverage

Reporting Requirements

Applicable Large Employer (“ALE”)

An employer is considered “large” if it has 50 or more full-time employees during the preceding calendar year Full-time employee: An employee working an

average of 30 or more hours per week Considerations: Full-Time Equivalent Employees New Employers / New ALE Control group rules Seasonal employees

2014 transitional relief


Example:

20 employees that average 35 hours of service per week.

40 employees that average 90 hours of service per calendar month.

20 full-time employees

30 full-time equivalent employees(40 employees x 90 hours of service = 3,600 / 120 = 30)

50 full-time employees = ALE

Full-Time Employees –Hours of Service

Hours of Service: All paid time, including vacation and sick leave.

Special rules: Volunteers

Student employees

Positions with hard-to-track hours.


Full-Time Employees –Identification Monthly Measurement Method ALE determines full-time status by counting an

employee’s hours of service for each calendar month

Look-Back Measurement Method If the ALE determines that an employee was

employed on average at least 30 hours of service per week during a measurement period, then the ALE treats the employee as a full-time employee during a subsequent stability period, regardless of the employee’s number of hours of service during the stability period, so long as the work remains an employee.

Full-Time Employees –Look-Back Measurement Method Measurement period Must be between three and twelve consecutive

calendar months Stability period Must be at least six consecutive calendar months,

but cannot be shorter than the measurement period

Administrative period An optional period of no longer than 90 days that

immediately follows the measurement period and immediately proceeds the stability period


Example:

1) Mike has worked for the Company for years, but is not currently receiving health coverage

2) In February 2015, Gus plans to hire Walt and Jesse Walt will work full-time

Jesse’s hours will be more uncertain

Full-Time Employees –Look-Back Measurement Method

Ongoing Employees

Definition: All employees employed for at least one “Standard Measurement Period”.

Do you have part-time (< 30 hours/week) employees?

Are they benefit-eligible today?

Determine whether to continue offering

coverage

Measure to determine

benefit eligibility

No measuring

needed

Yes

Yes No

No

New Hires

Determine administrative feasibility and understand the financial impact of providing coverage to part-time employees

Determine each new employee’s status at date of hire: Full-time, part-time, variable hour employee, or seasonal.

Is the new hire expected to work full time?

Is the new hire a variable hour employee or seasonal employee?

Must offer coverage within 90 days of

hire

Unsure

Yes No

No

Is the employee expected to work, on average, 30 hrs/week over the initial measurement period?

Measure over initial measurement period

Measure over initial measurement period

Need not offer

coverage

Must offer coverage within 90 days of

hire

Yes

No Yes


Full-Time Employees -Look-Back Measurement Method

Ongoing Employees

10/15/2013 1/1/2014 10/15/2014 1/1/2015 10/15/2015 1/1/2016

Measurement Period for 2015 Measurement Period for 2016 Measurement Period for 2017

Administrative Period

Administrative Period

2015 Stability Period 2016 Stability Period

Full-Time Employees -Look-Back Measurement MethodVariable-Hour New Hires

1/12015

Standard Measurement Period for 2017

2/15/2015New Hire’s Initial

Measurement Period

2/152015 10/15

201512/312015

2/142016

4/12016 10/15

20161/1

2017

4/12017 10/15

2017

1/12018

2/15/2015New Hire’s Initial Stability Period

Standard Measurement Period for 2018

2017 Stability Period (FTE)

Standard Administrative Period

Initial Administrative Period


Full-Time Employees –Additional Considerations

Change in employment status

Break in service rules

Different measurement methods for different employees

Penalties

No Coverage Offered:

Employer does not offer minimum essential coverage (MEC) to at least 95% of full-time employees and children to age 26; no requirement to offer coverage to spouses

At least one full-time employee obtains subsidized coverage through a health care exchange

Annual nondeductible penalty of $2,000 per full-time employee in excess of 30 employees (calculated monthly)


Penalties

Coverage Offered but Not Affordable Employer offers MEC to at least 95% of full-time employees and

children to age 26 But MEC offered is not “affordable” and does not provide

“minimum value” At least one full-time employee obtains subsidized coverage

through a health care exchange Annual nondeductible penalty of $3,000 per full-time employee

who obtains subsidized coverage through an exchange (calculated monthly) (but not more than penalty for offering no coverage)

Minimum Essential Coverage (MEC)

MEC Plans: Includes self-insured employer coverage, most group

health plans offered by an employer to employees

Not the same as “essential health benefit”: 10 broad categories of coverage required for health insurance sold in individual and small group markets

Does not include “excepted benefits” (e.g., accident or disability plans, specified illness plans, dental plans, vision plans, flexible spending accounts)

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Affordable Coverage

Affordable Coverage Safe Harbors:

The cost of the annual premium for the lowest-cost self-only coverage is less than 9.5% of (1) the employee’s Form W-2 wages, (2) the employee’s rate of pay, or (3) the federal poverty line for individuals

The cost of family coverage is not included in the affordability assessment, and coverage will be considered affordable even where the cost of family coverage is more than 9.5% of the consumer’s household income

If the self-only coverage offered to the employee meets the definition of affordable, the plan is considered affordable for the employee AND for all of the employee’s household members

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Minimum Value

Plan pays at least 60% of total expected costs

Employer contributions to HSAs and HRAs count towards minimum value

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ACA Reporting

Begins in 2016:

Reports for coverage provided or offered in 2015 will be due in early 2016

Purpose: Enforcement of the Employer Mandate Enforcement and administration of the Individual

Mandate Determine eligibility for premium tax credits and cost

sharing reductions on exchange coverage

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Individual Mandate Reporting

Group health plan sponsors must report coverage information for each individual to whom MEC was offered

Due annually to each employee by January 31 following the year of coverage. (i.e. 1/31/16 for the 2015 reporting year)

Due annually to the IRS by March 31 of the year following the year of coverage (i.e. 3/31/16 for the 2015 reporting year)

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Use Form 1095-C (may be combined with W-2 mailing)

Use one Form 1094-C to transmit Form 1095-C to the IRS


Employer Mandate Reporting

Applicable large employers must report information to the IRS on health care coverage offered (or not offered) to full-time employees

Due annually to each employees by January 31 following the year of coverage. (i.e. 1/31/16 for the 2015 reporting year)

Due annually to the IRS by March 31 of the year following the year of coverage (e.g. 3/31/16 for the 2015 reporting year)

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Use Form 1095-C (may be combined with W-2 mailing)

Use one form 1094-C to transmit Form 1095-C to the IRSElectronic filing is required if the employer files at least 250 returns

Form 1095-C

Required Information:

The employee's name, address and Social Security number The employer's name, address and employer identification number Whether the employee and family members were offered health

coverage each month that met the minimum value standard The employee's share of the monthly premium for the lowest-cost

minimum value health coverage offered Whether the employee was a full-time employee each month The affordability safe harbor applicable for the employee Whether the employee was enrolled in the health plan If the health plan was self-insured, the name and Social Security

number (or birth date if the Social Security number is unavailable) of each employee and family member covered by the plan by month

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Form 1094-C

Required Information:

The employer's name, address, employer identification number and contact person

The total number of Forms 1095-C filed A certification by month as to whether the employer offered its full-

time employees (and their dependents) the opportunity to enroll in minimum essential health coverage

The number of full-time employees for each month of the calendar year

The total number of employees for each month Whether special rules or transition relief applies to the employer The names and employer identification numbers of other employers

that are in a controlled group or affiliated service group with the employer

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Simplified Reporting

Transition Relief for 2015: If the employer has made a qualifying offer to at

least 95% of its full-time employees (including spouses and dependents)

The employer would only need to report employee name, address and TIN/SSN along with a code indicating that a qualifying offer was made for all 12 months of the calendar year, using the Form1094-C

In lieu of providing a Form 1095-C, the employer would provide a standard statement to each full time employee

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Large Employer Files? Forms 1094-B/1095-C Forms 1095-C/1094-C

No Plan No Yes

Insured Plan No (insurer files) Yes

Self-Insured Plan No Yes

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Year-End Employee Benefit Action Items


Year-End Action Items

Retirement Windsor – Qualified Retirement Plan

Recognition of Same-Sex Marriages

Health and Welfare Health Plan Identifier Number

Transitional Reinsurance Fee

Out-of-pocket Maximums

Questions?

ContactMolly A. [email protected]

Uche A. [email protected]


1

Why Should I Care About Immigration Law? Five Things

Everyone Should Know

Toni Blackwood and Kelli Stout

Five Things Everyone Should Know

1. Mergers, Acquisitions, and Corporate Restructuring: Keeping Immigration Law in mind.

2. Immigration sponsorship: How can I help someone become “legal”?

3. Managing Expectations with Immigration Sponsorship: Planning ahead in hiring new foreign workers and transferees.

4. Form I-9: What’s hard about I-9 compliance? The form isn’t long and it isn’t even filed with the government.

5. State Immigration Laws: Understanding the law of each state.


2

MERGERS, ACQUISITIONS, & CORPORATE RESTRUCTURING

Keeping Immigration Laws in Mind

Mergers, Acquisitions, & Corporate Restructuring

If your company changes ownership, it affects your foreign workers and your I-9 forms. Timing is important! Once the deal is done,

the damage is done.

Company’s responsibilities depend on the type of transaction: Asset acquisition without liability Successor-in-interest Who will be liable for the employees?


3


I-9 Forms Successor company has the option to file new

I-9 forms for employees of predecessor company

Successor company will assume the liabilities associated with the predecessor company’s prior filings


Foreign Workers Successor company will need to file new

immigration petitions for foreign workers with specific visas Failure to do so will result in loss of

employment authorization for the employee Employees on work visas have sued

companies for negligence when employees fall out of valid immigration status as a result of the company’s actions


4

IMMIGRATION SPONSORSHIP

“How can I help someone become legal?”

Immigration Sponsorship: Common Examples

How can I hire a domestic worker or nanny from another country?

Can I sponsor my gardener for immigration status?

Is there a way that my son’s soccer team can sponsor their coach for a work visa?


5

Immigration Sponsorship: Realities

Extremely limited avenues to obtain work-authorized immigration status in the U.S. Foreign national must fit into a specific visa

category and meet certain eligibility requirements

Visitor visa does not permit a foreign national to work

Immigration Sponsorship: Employer Sponsorship

Typically reserved for professionals with a college degree or persons with special ability or skills

H-1B Program Only for degreed professionals First-time H-1B beneficiaries subject to annual cap

Foreign national students may obtain work authorization for a limited time

Separate work visa categories for individuals from Canada, Mexico, Australia, Singapore, and Chile


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Immigration Sponsorship: “She’s not really my employee.”

If you hire a nanny, you are an employer. You must fill out an I-9. You must pay employment taxes.

Civil and criminal penalties for knowingly employing an individual who is not work authorized Civil fines

$375 to $16,000 per violation Criminal charges

Engaging in pattern or practice of knowing employment of unauthorized foreign nationals

Harboring foreign nationals unlawfully present in the U.S., Fraud Fines up to $3000 per unauthorized foreign worker;

imprisonment

MANAGING EXPECTATIONS WITH IMMIGRATION SPONSORSHIP

Planning Ahead when Hiring New Foreign Workers and Transferees


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Managing Expectations: Hiring a Foreign Worker

Employer sponsorship takes time and advance planning Immigration petitions are document intensive USCIS will ask for sensitive company financial

information and internal documents May require public posting of salary Salary, location of employment, job duties, and

occupational title all must be analyzed

Requests for Evidence Long processing times and backlogs

Managing Expectations: Why the delay?

Increased scrutiny of specific visa categories

Anti-fraud investigations

Site inspections

DOL and ICE Audits


8

FORM I-9

“What’s hard about I-9 compliance? The form isn’t long and it isn’t even filed with the government.”

Form I-9:What’s so hard about it?

Logistical considerations Timing

Remote hires

Documentation issues

Making corrections and updating information


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Form I-9:Case Examples

United Airlines (Continental Airlines) fined $270,000 and required to set up a $55,000 fund for employees who were harmed by allegedly requesting more documents of U.S. permanent residents and re-verifying their employment authorization. (Sept. 2014). UA suffered consequences of violations of the predecessor company

(Continental).

Potter Concrete (TX) fined $115,000 for asking non-U.S. citizens for specific documentation instead of presenting them with their choice of documentation.

Anodizing Industries Inc. (CA) fined $115,600 for failing to complete the I-9 forms within 3 days of hire for 26 employees. Good faith defense is only available to technical or procedural failures to

comply with a partial verification requirement—defense not available for failure to comply with verification requirement as a whole.

Form I-9: Be Prepared for an Audit or Investigation

ICE conducts over 3,000 I-9 audits/year

OSC Investigation

What should you do? Review your I-9 procedures

Conduct self-audits, even if you think you are following all the rules

Provide continuous training and ongoing monitoring of processes


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STATE IMMIGRATION LAWS

“Wait, so now you are telling me that our branch office in Georgia has to use E-Verify?”

State Immigration Laws

Every state has different immigration laws Constantly changing—important to keep up to date

Examples: Penalties for companies that engage in business with

companies that employ unauthorized workers Fines, business license revocation, prohibition from

state contracts for I-9 and work visa violations Colorado requires every employer to affirm in writing

that it has not knowingly hired unauthorized foreign workers and it has examined each new employee’s legal work status


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State Immigration Laws:E-Verify

Kansas E-Verify not required Legislation introduced in 2013, but died in committee

Missouri E-Verify required for state agencies and public contractors

Illinois E-Verify not required Employers who use E-Verify subject to added responsibilities;

additional anti-discrimination protection for workers Iowa

E-Verify not required Colorado

E-Verify required for public contractors

Questions?

ContactToni H. [email protected]

Kelli J. [email protected]


1

Mediation and Arbitration: When, Where, Why, and How

John R. Phillips and Kate E. McClymont

Mediation

Early mediation often favors employers

EEOCMissouriKansas

Federal/StateFederal


2

Mediation Preparation

Importance of preparation

Use of the mediator

Ongoing opportunities

Importance of term sheet

Insurance issues

Dispute Resolution Procedures

Multi-step procedures

“Guided Choice” – AAA

Resolution prior to arbitration

Discourages litigation

New opt-out concepts


3

The Missouri Arbitration Act

A written agreement to submit any existingcontroversy to arbitration or a provision in awritten contract, except contracts ofinsurance and contracts of adhesion, tosubmit to arbitration any controversythereafter arising between the parties isvalid, enforceable and irrevocable, saveupon such grounds as exist at law or inequity for the revocation of any contract.

Mo. Rev. Stat. 435.350.

Employment Arbitration Agreements

Must be legally enforceable Offer, acceptance, consideration

Must identify “covered” claims Employment-related claims

Often seen in Job applications Employee handbooks Employment agreements Separate arbitration agreements


4

What are they good for? Benefits Less Expensive More efficient/faster resolution May maintain confidentialities Fairness (arbitrator/panel replaces jury)

Drawbacks Potential for increased frivolous claims Reduces likelihood of SJ Legal uncertainty of enforcement Arbitrator selection/conflicts of interest

Missouri Courts Begin to Disfavor Arbitration Agreements

Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15 (Mo. Ct. App. 2008) Dispute Resolution Program Employee consent by continued employment Covered claims: employee claims only

Result: unenforceable Why? No employee signature No mutual promises to arbitrate Employer had unilateral right to modify DRP


5

Job Applications

Marzette v. Anheuser-Busch, Inc., 371 S.W.3d 49 (Mo. Ct. App. 2012) Employees completed job application It had an arbitration agreement that said if

they became employed any claims against employer would be subject to arbitration

Result: unenforceable Why? No consideration No mutual promises to arbitrate

Employee Handbooks

Johnson v. Vatterott Educ. Ctrs., 410 S.W.3d 735 (Mo. Ct. App. 2013) Agreement on pull-out section of employee

handbook

Signed by employee and employer

Result: unenforceable Why? Handbook was not a contract

Subject to change at any time by employer


6

Dispute Resolution Programs

Baier v. Darden Rest., Inc., 420 S.W.3d 733 (Mo. Ct. App. 2014) Employee presented with DRP

Employee signed acknowledgement

Result: unenforceable Why? Employer did not sign the acknowledgment

Employment and Arbitration Agreements Baker v. Bristol Care, Inc., 2014 WL 4086378

(Mo. Aug. 19, 2014) Signed employment and arbitration agreements

at same time she was promoted and given a raise Result: unenforceable Why? Continued employment not valid consideration for at-

will employee Employer could unilaterally change agreement to

arbitrate Arbitrator did not have exclusive authority as to

“formation” of the arbitration agreement


7

6 Takeaways to Remember1. Arbitration provisions should be in an agreement, not

an employee handbook or job application2. Arbitration agreements should be signed by both

employee and employer at the same time3. Arbitration agreements should contain mutual

promises by both parties to arbitrate disputes4. Consideration should include mutual promises to

arbitrate5. Arbitration agreement should not allow employer to

unilaterally modify agreement for existing claims6. Arbitration provision should give arbitrator exclusive

authority to resolve any dispute relating to the “formation” of the agreement

Questions?

ContactJohn R. [email protected]

Kate E. [email protected]


1

DRAFTING:IMPORTANT NEW RULES ON

RELEASES AND WAIVERS

Paul F. Pautler Jr.

CONFIDENTIALITY


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Gulliver Schools, Inc. v. Snay

Settlement Agreement had confidentiality provision that excluded attorney/spouse (but not other family members)

Plaintiff told college age daughter -- who posted on Facebook

Gulliver Schools, Inc. v. Snay

“Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

Gulliver not required to pay $80,000


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TOPICS

EEOC targets releases/waivers in settlement agreements

NLRB targets confidentiality provisions

Waivers in employment applications

EEOC Targets Releases

EEOC v. Eastman Kodak (2006) consent decree

EEOC v. Baker & Taylor (2013) consent decree

EEOC v. CVS Pharmacy (2014) dismissed


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Lessons Learned EEOC does not respect claimants’ intelligence EEOC is struggling to remain significant

What Employers can do re-word release provisions at minimum, reference re-wording in non-

disparagement, confidentiality and cooperation clauses


“The Release in Paragraph [X] does not include any claims that cannot be released or waived by law, including but not limited to the right to file a charge with or participate in an investigation conducted by certain government agencies. However, the Employee is releasing and waiving any right to any monetary recovery should any government agency (such as the Equal Employment Opportunity Commission) pursue any claims on the Employee's behalf.


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Nothing in this Agreement, including but not limited to the Release in Paragraph [X], is intended to limit, restrict, or interfere with Employee's right to engage in any protected activity, including but not limited to participating in any proceeding before the Equal Employment Opportunity Commission (and/or similar state or federal agency) and/or participating in concerted activity under the National Labor Relations Act.


Nothing in the Release in Paragraph [X] is intended to limit or restrict Employee's right to challenge the validity of this Agreement as to claims and rights asserted under the Age Discrimination in Employment Act.”


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NLRB Targets Confidentiality Agreement

Section 8(a)(1) of NLRA -- protects “concerted activities” including speech

Potential problem with confidentiality and non-disparagement clauses

NLRB Targets Confidentiality Agreements

Proposed Language

“. . . provided, however, that nothing herein shall be intended to interfere with any employee’s right to organize, engage in concerted activities, or otherwise exercise rights guaranteed under the NLRA.”


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Employment Applications: Shortening SOL

General Rule: OK so long as restriction is reasonable

Seems heavy handed

Missouri and Kansas say doing so is violation of public policy MO. Rev. Stat § 431.030 Pfeifer v. Fed. Exp. Corp. (2013)

Employment Applications: Shortening SOL


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Questions?

ContactPaul F. Pautler [email protected]

1© 2014 Husch Blackwell LLP. All Rights Reserved.

The Law of Accommodation: Expanding Enforcement of Disability and Religious

Accommodation in the Workplace

Julianne P. Story and Henry J. Thomas

EEOC Enforcement

• Strategic Enforcement Plan identifies discrimination based on gender, disability and religion as top priorities

• Developments in law of Accommodation• General principles & caselaw update• Recent EEOC Guidance (Pregnancy & Religious

Garb and Grooming)• Two U.S. Supreme Court cases

• Young v. United Parcel Service (pregnancy)• EEOC v. Abercrombie & Fitch (religion)


EEOC Enforcement

EEOC Enforcement


Federal Pregnancy Protections

• Title VII/Pregnancy Discrimination Act (PDA)(1) prohibits discrimination based on pregnancy, childbirth,

or related medical conditions(2) women affected by pregnancy, childbirth, and related

medical conditions must be treated the same as other persons in their ability/inability to work

• The ADA(1) prohibits discrimination based on disability(2) limits how an employer may make medical inquiries(3) requires reasonable accommodation for a qualified

applicant or employee with a disability unless doing so creates undue hardship

Pregnancy Accommodation Update

• Lifting Restrictions• Cadenas v. Butterfield HealthCare II (N.D. Ill. 2014)

• Leave as Reasonable Accommodation• Reed v. Jefferson Parish Sch. Bd. (E.D. La. 2014)

• EEOC v. The Lash Group (pending in S.D. Maryland)

• Work from Home• Mete v. Sears Holdings Corp. (pending in N.D. Ill.)


EEOC: Title VII/PDA Protections

• Women must be treated similar to other persons “in their ability and inability to work”• Light Duty

• Accommodations

• Leave

• New Guidance “imports” ADA into PDA

• Makes pregnancy subject to accommodation and undue hardship analysis

EEOC: ADA Protections

• An “impairment” need not last any particular duration

• Impairments related to pregnancy that affect major life activities (i.e., walking, standing, lifting), may also include neurological, musculoskeletal, endocrine and reproductive systems, and operation of individual organs within a body system


EEOC: ADA Protections

• Impairments of the reproductive system that make a pregnancy more difficult, necessitate restrictions to enable full-term pregnancy, or result in post-partum restrictions. Price v. UTi, US, Inc. (E.D. Mo. April 2013)

• Impairments involving other major bodily functions can result in pregnancy-related limitations:• pregnancy-related anemia (affecting cell growth)• gestational diabetes (affecting endocrine function)• depression (affecting brain function)• nausea (affecting digestive or urinary function)

• Impairments due to underlying condition exacerbated by pregnancy

Is an “impairment” even necessary?

• Heatherly v. Portillo’s Hot Dogs, Inc. (N.D. Ill. 2013)


U.S. Supreme Court

Young v. United Parcel Service, Inc. (No. 12-1226) • Question: Whether the PDA requires an

employer to accommodate pregnant workers with restrictions if the employer accommodates non-pregnant employees with the same restrictions

• Case involves PDA and ADA, but issue turns on interpretation of PDA

Religious Accommodations in the Workplace


Title VII Religious Discrimination Protections• Title VII of the Civil Rights Act of 1964 (as amended):

(1) covers all private employers, state and local governments, and educational institutions with 15 or more employees

(2) prohibits discrimination against employees because of religion in hiring, firing, and other terms and conditions of employment

(3) requires employers to reasonably accommodate an applicant’s or employee’s sincerely held religious belief in engaging in religious expression in the workplace unless the accommodation imposes an undue hardship on the business

EEOC: Understanding “Religious beliefs”

• What constitutes a Religion?• Religion: all aspects of religious observance,

practice, and belief

• Religious Belief: a sincere and meaningful belief that occupies in the life of its possessor a place that is parallel to God in traditional religions


EEOC: Religious Accommodation

• A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion, including:• modification to uniform policy

• scheduling adjustments

• job reassignments and lateral transfer

EEOC: Religious “Undue Hardship”

• An employer must reasonably accommodate the religious practices of employees or applicants unless it would create an “undue hardship”

• Undue Hardship: “more than de minimis” cost or burden on the operation of the employer’s business


Accommodation Update

• Scheduling• EEOC v. Food Lion, LLC, (M.D.N.C. 2014)

• Garb and Grooming• EEOC v. Mims Distributing Company, Inc.,

(E.D. N.C. 2014) • EEOC v. 704 HTL Operating, LLC and Investment

Corporation of America,(D.N.M. consent decree entered Nov. 2013)

• EEOC v. United Galaxy Inc., d/b/a Tri-County Lexus, (D.N.J. consent decree entered Nov. 2013)

U.S. Supreme Court

E.E.O.C. v. Abercrombie & Fitch Stores, Inc.(No. 13A1139)

• Question: • Whether an employee or applicant must notify

the employer that their religious beliefs might require accommodations or, to what extent, is an employer required to discuss accommodations in absences of a request for an accommodation


Best Practices

• Implement policy, practice of non-discrimination and reasonable accommodation

• Engage in interactive process• Make necessary inquiries (appropriate in scope) to

determine if accommodation is necessary• Do not make assumptions on ability to work or

needed accommodations based on appearance• Ensure practice of accommodating is equal and

consistent• Train managers• Review job descriptions

Questions?

ContactJulianne P. [email protected]

Henry J. [email protected]

Documents

SOCIAL MEDIA POLICIES · 2018-07-09 · The Golden Rule: ... W & M Welding, Inc., Apr. 15, 2014 Missouri Supreme Court abandoned the standard ... • Employers should develop a well-publicized