Proposed changes to the rule authorizing employment for H-4 status holders could spell an increase in H-1B petitions this upcoming fiscal year, and ultimately, increased sponsorship costs for employers. Consequently, employers with workers who presented an H-4 EAD card as their I-9 employment eligibility documentation are strongly advised to consider sponsoring such workers who qualify for H-1B status in the upcoming fiscal year quota. Employers can submit H-1B petitions on behalf of eligible workers in H-4 status during the first week of April for entry in the FY2019 lottery selection process. Employers must be prepared to submit their paperwork to USCIS during the first five business days of April, which takes place this year from Monday, April 2 to Friday, April 6, 2018. Employers wanting more information on H-1B eligibility requirements and the FY2019 lottery season can click here for further details. Continue Reading
In a surprising move, the National Labor Relations Board has overturned its recent decision that had overruled an expansive joint employer standard set forth by the previous Obama-era Board. So, at least for the time being, where an entity has reserved the right to control employees with another entity – even if that control was never exercised – the Board will continue to find a joint employment relationship under the National Labor Relations Act.
The “joint employer” concept is of vital importance in two major areas regulated by the Board: The first concerns unfair labor practice charges: Who may be held jointly liable for engaging in unfair labor practices? The second concerns collective bargaining/economic activity obligations: Who has the duty to bargain? Who is bound by the collective-bargaining agreement? Who may be subject to strikes, boycotts and picketing? Continue Reading
A second federal appellate court has ruled that Title VII of the Civil Rights Act prohibits employers from discriminating against employees based on their sexual orientation. The ruling is in line with the EEOC’s interpretation of the law, but at odds with the interpretation by the current administration’s Department of Justice.
The case, Zarda v. Altitude Express, Inc., involved a skydiving instructor who was fired after his employer received a complaint that he inappropriately touched a female client during a tandem skydive and then disclosed his sexual orientation to excuse his behavior. The skydiving instructor denied inappropriately touching the client, but admitted he told the client he was gay, simply to preempt any discomfort she may have felt being strapped to him for the tandem skydive. The skydiving instructor alleged he was fired solely because of his sexual orientation, which he maintained violated Title VII’s prohibition on discrimination based on sex. The employer argued that Title VII does not cover, and was not intended to cover, sexual orientation discrimination because, among other things, it only refers to discrimination “because . . . of sex.” Continue Reading
Employers that have been frustrated with the EEOC’s position on how they can use arrest and conviction records, take note: earlier this month, a federal court in Texas enjoined the EEOC and the Attorney General of the United States from enforcing the EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” (the Guidance) against the State of Texas. The Guidance, which was issued in April 2012, requires an employer to make an individualized assessment when using a criminal record to disqualify an employee from employment. When the Guidance was first issued, many complained that it was issued without notice and the opportunity for public comment. Continue Reading
“Have you been injured?” No longer just a query for auto accident victims, plaintiffs must increasingly be able to answer “yes” to that question before bringing suits for violations of statutory rights.
Once upon a time, a technical violation was enough. However, following the Supreme Court’s decision in Spokeo v. Robbins (2016), courts have been increasingly reluctant to permit legal claims, including under employment-related statutes, for technical statutory violations. Instead, as discussed below, plaintiffs must often demonstrate they were actually injured before their lawsuit proceeds.
To have “standing” to bring a claim, essentially a person must be able to demonstrate that he/she has a personal stake in the outcome of the controversy sufficient to stand before the court. In Spokeo, the Supreme Court detailed the requirement that an injury be “concrete” and “particularized” to establish “standing.” The Court found that, although an injury need not be tangible, it must be “real,” and not “abstract.” Continue Reading
With the change to a Republican President and the appointment of new NLRB members, the expectation that more pro-employer decisions will be issued has begun. Several NLRB decisions have re-established prior labor law precedents that were overturned by the Obama era NLRB. A prime example of this is the recent decision involving Raytheon Network Centric Systems that restored the 50-year-old precedent regarding the requirement to negotiate certain changes with a union. Continue Reading
Recent trends indicate that ’tis always the season for web accessibility litigation, so with the new year, you should take a new look at your website. Businesses around the country, and especially in Florida, are discovering that their websites are within the crosshairs of visually impaired plaintiffs who, on contacting a business for assistance, may be told to visit a website that might not be accessible.
The Department of Justice first promised to issue regulations on making websites compliant with the Americans with Disabilities Act back in 2010, and eventually projected that they will be issued this year. Meanwhile, private lawsuits are proceeding. Last year, following what may be the first trial of its kind, a Florida federal court entered a three-year injunction against a grocery store chain mandating that it make its website fully and equally accessible to the visually impaired. The case was one of more than 70 filed by plaintiff Juan Carlos Gil, who, in this suit, alleged that he is a visually impaired individual who could not access pharmacy coupons that were available to customers only on the web. Continue Reading
Business owners, franchisors, contractors, and staffing agencies can breathe a little easier – for the moment – following the National Labor Relations Board’s reversal last month of a controversial Obama-era standard that broadly defined “joint employer.”
In the 2015 Browning v. Ferris decision, the NLRB overturned decades of precedent and created an expansive definition of joint employer. Joint employers included not only those that exercised direct or indirect control over workers, but also those who had “reserved authority” to do, even if they never exercised it. That “reserved authority” could include something as basic as reserving the right to set opening and closing hours. In broadening the joint employer concept so dramatically, the NLRB essentially eradicated many of the advantages of using staffing agencies or franchise models. Also, in issuing the Browning-Ferris decision, the NLRB basically required entities that control the terms and conditions of employment, such as staffing agencies and corporate users of workers supplied by staffing agencies, to collectively bargain with the workers. After the Browning-Ferris case, the DOL followed suit and reaffirmed the broader concept of joint employment, and a federal appellate court adopted an even broader definition of joint employer in a wage and hour case, noting that two entities are joint employers unless they can show that they are “completely disassociated” from one another. Continue Reading
Rules mandating workplace civility and protection of confidential business information — recently the target of the National Labor Relations Board — are lawful again. Non-union employers take note: no longer will the Board automatically find an unfair labor practice for policy, work rule and handbook provisions that employees would construe as prohibiting protected concerted activity. Based on The Boeing Company decision issued last month, the newly re-constituted Board will now seek to strike a balance between employer and employee rights. The endorsement of workplace civility rules aligns with the EEOC’s 2016 Select Task Force on Harassment recommendation encouraging the NLRB to reconsider its position and support such rules.
The Boeing Company decision represents a marked retreat from the Board’s 2004 decision in Lutheran Heritage Village-Livonia when the NLRB signaled that it would find innocuous employer rules attempting to protect its property or business or promoting workplace civility violated the NLRA if employees would merely “reasonably construe the language” to prohibit “Section 7” activities— activities such as the right to unionize or engage in collective action, to discuss wages, terms and conditions of employment and to air and investigate their grievances. Following Lutheran Heritage, the Board prosecuted dozens of unfair labor practice charges over benign workplace rules asking employees to “work harmoniously,” “to conduct themselves in a positive and professional manner,” “to keep customer and employee information secure” and to “refrain from inappropriate discussions about the company.” The Board’s Obama-era General Counsel had even issued a detailed memorandum cataloging scores of decisions finding various workplace rules unlawful, even if they had never been applied to restrict employees’ rights under the NLRA and were not issued in response to union activity.
In its December 14, 2017, 3-2 decision in The Boeing Company, the new Republican majority Board reversed the decision of an Administrative Law Judge that found Boeing’s policy restricting camera-enabled devises such as cell phones on its property in violation of the NLRA. The ALJ had applied the Lutheran Heritage analysis to the no-camera rule. Under that analysis, rules would violate the NLRA if any of the following existed: (1) employees would reasonably construe the Rule to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the Rule had been applied to restrict the exercise of Section 7 rights. The ALJ had found that under the first prong of that analysis, employees would reasonably believe that the rule prohibited them from possessing cell phones that could take pictures to support bargaining demands or gather evidence for grievances. The ALJ gave no weight to Boeing’s concern that photographs could be taken that undermined its obligation to keep national security matters secret, safeguard its confidential information and trade secrets, and protect the privacy of its employees.
The Board’s decision scrapped the first prong of the Lutheran Heritage test. The Board enunciated a new standard for facially neutral rules that requires the Board to strike the proper balance between the employer’s business justification and employee rights under the NLRA. Finally, the Board will now consider the employer’s justification for imposing rules. Past decisions invalidating rules promulgated in response to union activity or that were actually applied to restrict Section 7 rights will not be impacted by the Boeing decision. In announcing its decision, the Board delineated three categories of Rules:
- Category 1 includes Rules that the Board designates as lawful either because, when reasonably interpreted, they do not prohibit or interfere with the exercise of Section 7 rights; or the potential impact on protected rights is outweighed by the justifications associated with the rule. Boeing’s no-camera requirement and rules calling for employees to abide by basic standards of civility fit in this category.
- Category 2 includes rules that warrant individualized scrutiny as to whether the rule would prohibit or interfere with employees’ Section 7 rights and, if so whether any adverse impact on such protected rights is outweighed by legitimate justifications.
- Category 3 includes Rules that the NLRB will designate as unlawful because they would limit Section 7 rights and the adverse impact on these rights is not outweighed by its justifications. An example would be a rule that prohibited employees from discussing wages with each other.
Although the Boeing decision portends future unfair labor practice litigation to begin the process of pigeon-holing Rules into the categories that will or will not require the Board’s scrutiny in future cases, employers can be at ease in knowing that most rules designed to promote workplace civility and security of its property and information will fit into Category 1. Other types of rules will now require a balancing test—a balance that includes consideration of the employer’s reasons for implementing the rules. However, rules enacted in response to union activity or applied to restrict employees from engaging in protected activity will still be subject to unfair labor practice charges. Despite the employer-friendly decision, employers should take the opportunity to review their rules and policies to avoid being the test cases.
The NLRB offered a holiday gift to employers this year, overturning an Obama-era decision that allowed unions to organize “micro-units” of employees, by restoring a more employer-friendly standard to determine an “appropriate bargaining unit.” In PCC Structurals, Inc., the NLRB overturned the 2011 decision in Specialty Healthcare and Rehabilitation Center of Mobile which had allowed the unionization of “micro-units.” The new decision re-establishes the traditional “community of interest” standard for determining which employees should be included in an appropriate bargaining unit.
Composition of an appropriate bargaining unit usually has a significant effect on the result of the NLRB election to determine whether the employees will be represented by the union. The petition for an election filed by a union typically proposes a bargaining unit composed of employees who have already indicated their support for the union. An employer response may be to propose a larger bargaining unit including employees who may not have been organized by the union or who may not support the union. The NLRB must decide which bargaining unit is appropriate. Under the Specialty Healthcare standard, employers seeking to expand the bargaining unit were required to prove the existence of an “overwhelming community of interest” among the employees in the Petition and the employees that the employer seeks to add, which was a more stringent standard than had been in place for decades. If the union won the election, the result was that employers may have been required to bargain with multiple “micro-units”, instead of the traditional “wall-to-wall” bargaining units. PCC Structurals restored the prior standard. Continue Reading