Use of Form I-765 Approval Notices for I-9 Verification Due to COVID-19

Posted in Employment Counseling & Workplace Claims Prevention, Immigration Planning & Compliance

Employers who accept certain Form I-765 Approval Notices specifically approved during the pandemic for I-9 documentation purposes must reverify the employees presenting such documents no later than December 1, 2020. Delays in production of Employment Authorization Documents (EADs) due to the COVID-19 pandemic have forced some foreign national workers to experience a lapse in employment authorization or to postpone employment altogether. Accordingly, on August 19, 2020, the U.S. Citizenship and Immigration Services (USCIS) temporarily expanded the List of Acceptable Documents for Form I-9 to assist employers who have been impacted by EAD production delays. Due to COVID-19, for a limited time, employers can accept a Form I-765 Approval Notice (also known as Form I-797, Notice of Action) with a Notice date on or after December 1, 2019 through and including August 20, 2020, for Form I-9 employment eligibility verification purposes in lieu of an EAD Card (also known as Form I-766).

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Traps for the Unwary: Responding When An Employee Quits

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

You may have been there: a valuable employee angered by some new development, announces “I quit!” and storms out, then shows up for work the next day as though nothing happened. Or a rapidly failing underperformer submits a written resignation, but it’s not effective until 60 days later. What’s an employer to do? Can/should an employer march them out the door?

A voluntary resignation can be unintentionally converted into an involuntary discharge if the employer isn’t careful, and the consequences can prove costly. Below are some of the more common scenarios involving tricky resignations, and some of the measures that employers might take to minimize issues.

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Background Checks and the Fair Credit Reporting Act: Keep It Simple!

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Litigation, Privacy

Employers who conduct background checks, beware! It might be time to revisit your standard documents and screening processes to ensure they comply with the Fair Credit Reporting Act (FCRA). The number of lawsuits brought under the FCRA has more than doubled since 2009. FRCA litigation was the highest on record at the close of 2019, and continues to rise. Many of these cases have been brought on a class basis for purely procedural violations and resulted in multi-million dollar settlements.

The good news for employers is that in the context of FCRA compliance, less is more, and a quick review of current forms and practices can alleviate any concerns regarding potential exposure.

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Department of Labor Addresses Court Ruling By Issuing New FFCRA Leave Regulations

Posted in Employment Counseling & Workplace Claims Prevention, Medical & Other Leaves, Wage & Hour

In response to a New York federal court striking certain aspects of the Department of Labor’s regulations interpreting the Families First Coronavirus Response Act (FFCRA), last week the DOL issued a revised Temporary Rule (the “Revised Rule”), in some ways resisting and in others yielding to the court’s ruling. In particular, the Revised Rule maintains the DOL’s prior positions that FFCRA leave is available only if the employer has work available for the employee to do and that employees must have the employer’s consent to intermittent leave for certain qualifying conditions, but it narrows the DOL’s prior definition contained in the original Rule of health care provider and modifies the prior requirement that employees provide documentation of the need for leave prior to taking it.

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Employers Not Racing to Implement Employee Payroll Tax Deferral

Posted in Employee Benefits, Wage & Hour

Offering eligible workers the option to suspend the employee share of Social Security payroll taxes through year-end may sound good at the moment, but concerns about next year are leaving many employers wary. Indeed, the Wall Street Journal reported that some of the nation’s largest employers have rejected the President’s payroll tax deferral plan, and Bloomberg reported that no major private employer has stepped forward to take advantage of the plan. Under guidance issued by the IRS on August 28, 2020, employees would need to repay those deferred taxes in the first four months of 2021.

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Employees Are Responsible for Logging Remote Work Hours

Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

Employers have struggled with identifying remote working hours for non-exempt employees juggling telework, child care and/or virtual learning during the pandemic. Employees will now bear the burden of properly recording those hours, under new enforcement guidance issued by the Department of Labor (DOL) in late August.

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Labor Day – More than just Barbecues and Parades

Posted in Employee Benefits, Employment Counseling & Workplace Claims Prevention

As summer winds downs, employers and employees alike look forward to a leisurely three-day weekend typically spent with family and friends, enjoying the remaining days of summer warmth, perhaps readying kids to go back to school or college. Except this Labor Day will likely be anything but typical. With crowded activities such as parades and fireworks displays canceled due to social distancing precautions, we may find ourselves spending the weekend hanging out in our backyards with our families, taking a walk, hike, or bike ride, or maybe reading or binging some new TV series. And with many school reopening plans put on hold or even scrapped altogether, many of us are feeling anxiety at the prospect of another semester of virtual learning or scrambling to find childcare. But, just because this holiday may feel different, like much of this year, doesn’t mean there isn’t anything to celebrate on Monday, September 7. Continue Reading

Screening Employees for Symptoms: Perils and Pointers

Posted in Employment Counseling & Workplace Claims Prevention, Privacy, Workplace Safety & OSHA

Screening employees for symptoms of COVID-19 is critical to limiting both the spread of the virus and a company’s exposure to claims that it did not do enough to protect its employees. But screening itself can create other liabilities, so you will want to be sure your process follows recommended federal, state and local regulations and guidance. Both the U.S. Centers for Disease Control and the Occupational Safety and Health Administration recommend that employers consider screening employees for symptoms. In addition, some state and local orders mandate temperature screening in some industries or across the board; some require such screening at the worksite; some set a different threshold temperature than the one used by the CDC or different thresholds that vary by industry. So when you implement a screening program, be sure to check state and local law.

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Longer Than Expected Layoffs May Trigger Notice Requirements

Posted in Employment Counseling & Workplace Claims Prevention, Labor Relations, Wage & Hour

Back in the spring, when COVID-19 first forced the shutdown of many businesses, did your company temporarily furlough or lay off workers? If so, pay attention to that calendar, as six months may be rapidly approaching. As we noted in our prior blog, certain layoffs and reductions in hours that last longer than six months trigger federal notice requirements under the federal Worker Adjustment and Retraining Notification Act (WARN Act), so if those short-term layoffs or reductions are looking longer term or even permanent, now is the time to act.

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Common Sense Finally Prevails: Employers No Longer have to Tolerate Abusive and Offensive Conduct in the Workplace  

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Labor Relations, Social Media

Your employee has just cursed at you, calling you every racist and/or sexist name in the book. Naturally, that employee must go! Just as you are ready to sign off on the termination, a thought occurs to you: “Uh-oh. He was standing on a picket line when he called me those names. Am I still allowed to discipline him, or would doing so violate his rights under the National Labor Relations Act? Am I really obligated to keep this employee after the things he called me?”

Until recently, the National Labor Relations Board (NRLB) applied a variety of different tests to determine when employers can lawfully discipline employees for inappropriate and abusive conduct while they are engaged in conduct or speech that would otherwise be protected by the National Labor Relations Act (NLRA). Recognizing that using all of these different tests often resulted in unfair and arbitrary results, the NLRB in a recent decision, General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), replaced these multiple standards with the familiar burden-shifting framework it established in Wright Line, 251 NLRB 1083 (1980).

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