National Labor Relations Board Approves the Use of Mandatory Arbitration Agreements as Tool For Employers to Fight Collective Actions

By Kathleen Jennings (kjj@wimlaw.com)

A decision issued this week by the National Labor Relations Board gives employers greater clarity on the issue of mandatory arbitration agreements. (Cordua Restaurants, N.L.R.B., 16-CA-160901, August 14, 2019). This decision is an important follow up to the U.S. Supreme Court’s landmark decision in Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S.Ct. 1612 (2018). In Epic Systems, the Supreme Court held that agreements containing class-and collective-action waivers and stipulating that employment disputes are to be resolved by individualized arbitration do not violate the National Labor Relations Act and must be enforced as written pursuant to the Federal Arbitration Act.

Specifically, the Cordua Restaurants decision answered two questions left open in Epic Systems: (1) whether the National Labor Relations Act (NLRA) prohibits employers from promulgating mandatory arbitration agreements in response to employees opting in to a collective action; and (2) whether the NLRA prohibits employers from threatening to discharge an employee who refuses to sign a mandatory arbitration agreement. The Board’s answer to both questions was NO. This is a victory for employers who desire to use mandatory arbitration agreements.

In a small victory for employees, however, the Board reaffirmed longstanding precedent establishing that Section 8(a)(1) of the NLRA prohibits employers from disciplining or discharging employees for engaging in concerted legal activity, which includes filing a class or collective action with fellow employees over wages, hours, or other terms and conditions of employment.

What this means for employers:

  • Employers are allowed to condition employment on signing mandatory arbitration contracts.
  • Employers can warn workers that they will be fired if they fail or refuse to sign mandatory arbitration agreements.
  • Employers can require employees to sign mandatory arbitration pacts in response to workers opting into FLSA collective actions or class actions brought under state wage-and-hour laws. In those agreements, employees must agree that they will not opt into an existing collective action. This is a powerful weapon for an employer to wield in response to the filing of a collective action.

According to a 2018 study by the Economic Policy Institute, more than half of nonunion, private sector employers have mandatory arbitration procedures. However, these agreements are not “one size fits all.” It is advisable to contact qualified counsel to craft an agreement that meets the needs of your particular business and workforce.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

NEW HORIZONS IN FMLA LEAVE: PARENT-TEACHER CONFERENCES?

By Elizabeth K. Dorminey (ekd@wimlaw.com)

Is a parent entitled to use FMLA leave to attend a special education parent-teacher conference? A recent Opinion Letter from the U.S. Department of Labor says “yes.”

In a letter published August 8, 2019 (FMLA2019-2-A), Wage and Hour Division Administrator Cheryl M. Stanton responded to a formal request for an opinion on this question. The writer explained that he was the father of two children with FMLA-qualifying serious health conditions. His wife’s employer had approved her taking FMLA leave intermittently to take the children to medical appointments but declined her request to take intermittent FMLA leave to attend Committee on Special Education (CSE) meetings to discuss the children’s Individualized Education Programs (IEP) at their school. The children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and meetings are held four times a year to review their educational and medical needs, well-being, and progress. The writer wanted to know if his wife may insist on intermittent FMLA leave to attend these meetings.

Based on the facts provided in the letter, the Administrator concluded that the wife’s need to attend CSE/IEP meetings was a qualifying reason for taking intermittent FMLA leave. The Administrator found that the meetings were necessary to “care for a family member … with a serious health condition,” as defined in 29 C.F.R. § 825.100(a); and that “to care for” includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b). That language usually is applied to making medical decisions on behalf of a hospitalized family member or arrangements to find suitable childcare for a child with a disability, even if the decisions do not involve a facility that provides medical treatment. In a previous opinion letter, WHD had found that an employee was entitled to take FMLA leave to attend meetings related to a parent’s health condition. WHD Opinion Letter FMLA-94, 1998 WL 1147751, at *1 (Feb. 27, 1998).

Even though the CSE/IEP meetings are focused on education, not health care, the Administrator found that attending the meetings was essential to the wife’s ability to provide appropriate physical or psychological care to the children and that her participation would help her make medical decisions concerning the children’s care. Bottom line: the wife is entitled to claim intermittent FMLA leave to attend the meetings.

Point/Counterpoint

    This is an interesting and controversial letter and provoked considerable debate among the firm’s attorneys. Intermittent leave, often taken in small increments, can be an administrative challenge for employers who must track leave use and may need to reschedule other workers to cover for an absent employee. The FMLA’s focus has been on dealing with illness and disability, the exception being maternity leave or leave for adoption or foster placement, but this letter suggests that the “medical” aspect needs only to be incidental: the focus of these meetings was on the children’s education, not health care. Will this throw wide open the gates for employees to claim leave for a broader scope of activities, on the argument that they are tangentially related to health and well-being? When does an underlying “educational” issue becomes a health issue? Taking a child to the doctor for dyslexia testing or for counseling is covered by the FMLA. Shouldn’t meetings with teachers who will be implementing the doctors’ orders be covered as well?

Mandatory unpaid leave to attend parent-teacher conferences has been adopted in several States. Nevada requires an employer to grant unpaid leave to a parent, guardian, or custodian of a child who is enrolled in a public school for up to 4 hours each school year to attend parent-teacher conferences, school-related activities during regular school hours, to volunteer at school activities during regular school hours, and to attend school-sponsored events. California allows up to 40 hours of unpaid leave annually; the District of Columbia allows 24 hours each year. Illinois allows up to 8 hours each school year, in 4-hour increments, Massachusetts 12. Minnesota and Louisiana each allow 16; North Carolina matches Nevada at 4. Rhode Island offers 10. Vermont matches D.C. at 24.

CONCLUSION

While this is a somewhat unusual situation, it reminds us that employers need to be proactive in learning the facts surrounding an employee’s request for FMLA leave. The notice and certification requirements were meant to foster a dialogue between employer and employee to enable the employer to determine if a leave request meets the requirements under the Act. Employers should use those tools to carefully analyze FMLA-related leave requests. When an employer is in doubt as to whether a request for FMLA leave should be granted, it is best to contact knowledgeable legal counsel for advice.

Elizabeth Dorminey is a principal in the Athens office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. where she is a member of the Wage and Hour practice team. She can be contacted at ekd@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

The Importance of Verifying Employment Eligibility In a Legal Manner

By Kathleen J. Jennings (kjj@wimlaw.com)

There is a right way and a wrong way to verify employment eligibility of new employees. A McDonald’s franchisee will pay in excess of $91,000 in a settlement with the Department of Justice (DOJ) because it used the wrong way. Specifically, the company routinely required non-citizens to produce documents issued by the Homeland Security Department during the onboarding process, even after they produced valid, legally acceptable documents to prove they were authorized to work. According to the DOJ, the company’s practice came to the DOJ’s attention after an employee complained that she was required to produce a green card despite having shown her employer a valid driver’s license and unrestricted Social Security card.

This is the third immigration related settlement reached by DOJ in the past week, so it would be safe to say that DOJ is aggressively enforcing anti-discrimination laws related to immigration. At the same time, ICE is increasing its own workplace enforcement efforts to remove persons who are not eligible to work in the U.S. What this means for employers: it is extremely important to accurately and legally verify employment eligibility for all employees.

What is the right way to verify employment eligibility? The employer and employee must properly complete USCIS Form I-9. To establish both identity and employment authorization, a person must present to their employer a document or combination of documents from List A, which shows both identity and employment authorization; or one document from List B, which shows identity and one document from List C, which shows employment authorization.

LIST A: Documents That Establish Both Identity and Employment Authorization

All documents must be unexpired.

  1. U.S. Passport or U.S. Passport Card
  2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
  3. Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV)
  4. Employment Authorization Document (EAD) that contains a photograph (Form I-766). Form I-766 expired on its face combined with Form I-797 based on an automatic EAD extension in certain circumstances qualifies as unexpired Form I-766;
  5. For a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I-94 or Form I-94A bearing the same name as the passport and an endorsement of the alien’s nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form
  6. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

    LIST B: Documents That Establish Identity

    All documents must be unexpired.

    For individuals 18 years of age or older:

  7. Driver’s license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  8. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  9. School ID card with a photograph
  10. Voter’s registration card
  11. U.S. military card or draft record
  12. Military dependent’s ID card
  13. U.S. Coast Guard Merchant Mariner Card
  14. Native American tribal document
  15. Driver’s license issued by a Canadian government authority

    For persons under age 18 who are unable to present a document listed above:

  16. School record or report card
  17. Clinic, doctor, or hospital record
  18. Day-care or nursery

     LIST C: Documents That Establish Employment Authorization

    All documents must be unexpired

  • A Social Security Account Number card unless the card includes one of the following restrictions:
    • NOT VALID FOR EMPLOYMENT
    • VALID FOR WORK ONLY WITH INS AUTHORIZATION
    • VALID FOR WORK ONLY WITH DHS AUTHORIZATION
  • Certification of report of birth issued by the U.S. Department of State (Forms DS-1350, FS-545, FS-240)
  • Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying territory of the United States bearing an official seal
  • Native American tribal document
  • U.S. Citizen Identification Card (Form I-197)
  • Identification Card for Use of Resident Citizen in the United States (Form I-179)
  • Employment authorization document issued by the Department of Homeland Security.

    Are you completing Form I-9 correctly? Wimberly Lawson can audit your I-9 Forms and related documents to verify your compliance with federal law.

    Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

    ©2019 Wimberly Lawson

    The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

ICE, ICE, Baby

by Kathleen J. Jennings (kjj@wimlaw.com)

With the threat of  U.S. Customs and Immigration Enforcement (ICE) raids in the very near future, we are repeating advice from an older blog post so that companies know what to do if ICE shows up at the door.

What is a company to do if ICE agents show up at a facility?

The first question that you need to ask is this: Do you have a warrant?

If the answer to that question is yes, then the company’s options are limited.

Review the warrant and contact counsel immediately. ICE is a federal law enforcement agency, and a company, like a person, needs to ensure that its 4th amendment (against unreasonable search and seizure) and 5th amendment (against self-incrimination) rights are protected.

Does the warrant seek documents or information? It is absolutely the job of the company’s counsel to respond or possibly even move to quash the warrant.
If there is no warrant, then the company has more options in responding.

Without a warrant, law enforcement cannot enter a company’s private property without the permission of an agent of the company. The company should designate in advance the person or persons who are authorized to interact with members of law enforcement on behalf of the company.

If there is no warrant or court order, the company does not have to provide any documents or information to ICE. The company may voluntarily provide information, such as Motel 6 did in Arizona, when it turned over guest logs to ICE.

If the company has a collective bargaining agreement, does the collective bargaining agreement say anything about the level of cooperation the company can provide to ICE? Some unions are seeking inclusion of provisions in collective bargaining agreements that would limit the employer’s ability to cooperate with ICE. Some model provisions restrict an employer from letting ICE agents into the workplace unless they possess a valid judicial warrant. These model provisions also ban the auditing or sharing of workers’ I-9 employment eligibility verification forms or checking status using the voluntary E-Verify program, except where required by law, from. As enforcement efforts become more aggressive, look for more unions to propose this type of contract language.
[Some unions, such as Unite Here!, which represents many hospitality workers, are also providing training to workers in the handling of encounters with ICE.]

What are the possible future consequences? Will a lack of cooperation result in more federal law enforcement pressure on the company? Or will cooperating with ICE result the loss of a substantial number of workers or unfavorable publicity?

Pro Tip: However a company chooses to respond to a visit from ICE, it should have a written plan of action in place well before anyone from ICE appears at the door. Review that plan with counsel to ensure that the company’s rights are protected.

Kathleen Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She has also handled criminal matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson
The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Rethinking the Use of Pre-Employment Drug Tests to Weed Out Applicants

By Kathleen J. Jennings (kjj@wimlaw.com)

Last week, Illinois became the 11th state to pass legislation to legalize recreational marijuana. New York may be the next state to pass similar legislation. In addition, 33 states (including Georgia) and the District of Columbia have passed laws legalizing the use of medical marijuana. With all the legal weed out there, should employers continue to drug test applicants (and employees) for the presence of THC (a marijuana metabolite)?

First and foremost—be aware that these state laws have no impact on federally mandated testing of applicants and employees, most notably, drug testing required by the Department of Transportation (DOT). To that end, the DOT has issued the “Recreational Marijuana” Notice: “We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.” As far as federal law is concerned, marijuana use is illegal.

For those applicants and employees that are not subject to federally mandated drug testing, some employers are discontinuing drug testing for the presence of THC. Some of those employers are doing so in order to avoid violating state laws: 11 states (Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania and Rhode Island) have statutes that explicitly prohibit employment discrimination against medical marijuana users. New York City passed an ordinance banning employers from conducting preemployment tests for medical marijuana. Nevada has recently passed legislation (awaiting the governor’s signature) that would prohibit an employer from rejecting a job candidate for testing positive for marijuana. We are also seeing court cases where the courts have found in favor of protecting medical marijuana users against discrimination.

Furthermore, some employers have stopped screening applicants for THC because they find that they are losing too many otherwise acceptable job candidates.

One of the biggest challenges for employers is determining if an employee is under the influence of marijuana while working. THC can stay in a person’s system for as long as 3 weeks. Current drug tests cannot accurately pinpoint when an individual actually ingested marijuana. Obviously, employers do not want their employees to be stoned while working, especially if they are operating equipment, driving, or providing health care services. If an employer has a suspicion that an employee is under the influence of marijuana while working, it is important to carefully document the reasons supporting that suspicion, such as odor and employee appearance and behavior, before sending the employee home or taking further action.

This is a very dynamic area of the law, and it is important to stay up to date on the laws of the states where your company does business.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

Safety Matters

By Kathleen J. Jennings (kjj@wimlaw.com)

When it comes to safety in the workplace, there are some obvious hazards that anyone should be able to identify and correct. One of them is access to exits. However, according to the Washington Department of Labor and Industries, the folks at Dollar Tree have not gotten that message. That agency has issued a proposed $503,200 fine for alleged safety problems in a single store. Most the violations involved storing merchandise in stock rooms where aisles and exit ways were reportedly blocked or too narrow and boxes were haphazardly stacked. Furthermore, there were repeat violations, which increased the amount of the proposed fine. In a written statement, Anne Soiza, assistant director for occupational safety at the Washington Department of Labor and Industries stated: “Even after multiple large fines, it appears this company has not gotten the message to ensure their safety and health system is working in every Washington store location.”

This is an issue that can and should be addressed by a comprehensive safety program that creates and supports a culture of safety. That program and the attendant training should empower employees to take action when they see obvious safety hazards such as blocked exits. In the absence of that culture, you can expect employees to take their safety complaints to a state or federal safety agency, which will conduct an inspection and issue a monetary fine.

The Bottom Line: A good safety program is priceless. Not only does a good safety program prevent workplace injuries and accidents and helps to control insurance and workers’ compensation costs, but it also shows employees that the employer takes their personal safety seriously, which enhances employee morale and retention.

Do you need a safety program or safety audit? Contact Larry Stine for more information.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

Responding to Social Security No-Match Letters: What Employers Need to Know

By Kathleen J. Jennings (kjj@wimlaw.com)

Since March 2019, the Social Security Administration (SSA) has sent out approximately 575,000 Employer Correction Notices, generally known as “No-Match” letters. What is a “No-Match” letter? It is a letter from the SSA informing an employer that it has at least one employee whose name and Social Security number combination on a filed W-2 do not match SSA records. The letters inform employers that they need to take corrective action but warn them not to “use this letter to take any adverse action against an employee.”

In a new twist, the recently sent letters instruct employers to register for the agency’s Business Services Online. This raises some concerns about whether SSA will share online information with other federal agencies, such as ICE. For now, however, SSA says that such sharing is not likely because data from W2s is tax information and disclosure is governed by the Internal Revenue Service.

What should an employer do if it receives a No-Match letter for one of its employees?

  • First, check your employment records to see if there is a typographical error. Did someone input a number incorrectly?
  • Second, if there is no error on the employer’s part, then the employer should inform the employee of the situation and ask the employee to bring his/her social security card to an HR representative for verification. The HR representative should document the meeting and make a copy of the card.
  • Third, if the social security card matches the information on the No-Match letter, the employer should direct the employee to resolve the situation with the SSA. This should be done in writing.
  • While not required to do so, an employer may schedule (and document) periodic meetings or other communications with the employee during the resolution period to keep abreast of the employee’s efforts to resolve the no-match, and to determine whether the employee needs more time to resolve the no-match than initially contemplated.

Employers should not jump to conclusions when they receive these letters. If an employee’s name and SSN don’t match SSA’s records, this does not necessarily mean the employee is not authorized to work. There are many possible reasons for a no-match letter, many of which have nothing to do with an individual’s immigration status or work authorization. Because of this, an employer should not assume that an employee referenced in a no-match letter is not work authorized and should not take adverse action against the referenced employee based on that assumption. Such action could subject the employer to liability for discrimination under the antidiscrimination provision of INA. When in doubt, consult with counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.