Labor and Employment

On July 17, 2017, the United States Citizenship and Immigration Service (“USCIS”) released a revised version of the Form I-9, Employment Eligibility Verification. Instructions for how to download Form I-9 are available on the USCIS Form I-9 page. Employers can use this revised version immediately or continue using Form I-9 with a revision date of 11/14/16 N through September 17^th.  However, beginning September 18, 2017, employers must use the revised form with a revision date of 07/17/17 N. Also, employers must continue following existing storage and retention rules for any previously completed Form I-9.The USCIS publication regarding the revised form summarizes the changes to the Form I-9 as follows:

Revisions to the Form I-9 instructions:

• We changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
• We removed “the end of” from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

• We added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
• We combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
• We renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

The USCIS also revised the Handbook for Employers: Guidance for Completing Form I-9 (M-274), which helps employers navigate the requirements for compliance with Form I-9 obligations.

More information can be obtained at: https://www.uscis.gov/news/alerts/revised-form-i-9-now-available.

Introduction

Imagine this scenario – you have hired a catering company to cater an event for you. The company performs its obligations, providing both the food and catering staff to ensure your attendees are well fed and taken care of. Happy at the conclusion of the event, you pay the company in full, and provide extra payment to the catering company in the form of a tip to demonstrate your appreciation. Who owns that tip – the catering company hired to provide the services, or the catering staff who worked the event?

On June 30, 2017, in Marlow v. The New Food Guy, Inc. d/b/a Relish Catering, the U.S. Court of Appeals for the Tenth Circuit determined that the Fair Labor Standards Act (“FLSA”) does not require an employer to share tips earned by an employee with that employee, as long as the employee is paid more than minimum wage.

To read the full article, visit the HRUSA blog at http://blog.hrusa.com/blog/employers-may-not-have-to-share-tips-with-employees/.

The new regulations that expand existing protections under California’s Fair Employment and Housing Act (FEHA) for transgender individuals and others go into effect July 1, 2017.  As California employers know, FEHA prohibits harassment and discrimination against individuals on the basis of many protected classes, including gender, gender identity, and gender expression.  Below is a brief summary of the highlights of the new regulations.

• The regulations clearly define and distinguish between “transgender,” “gender expression,” and “gender identity.”  They are not the same.
  • “Transgender” refers to a person whose gender identity differs from the person’s sex assigned at birth.  The person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.  Also, a transgender individual may or may not identify as “transsexual.”
  • “Gender expression” refers to a person’s gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.
  • “Gender identity” refers to each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.
• The regulations explain the process of “transitioning” which does not have to, but may include hormone therapy, surgeries, or other medical procedures.
• The regulations state it is unlawful to deny employment to an individual based wholly or in part on the individual’s sex, gender, gender identity, or gender expression.  It is also unlawful to discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning.
• The regulations include prohibitions against employers seeking proof of an individual’s sex, gender, or gender identity or expression.   However, for recordkeeping purposes, an employer may request an applicant to provide the information solely on a voluntary basis (e.g. when collecting data for EEO reporting purposes).  Also, an employer is permitted to use an employee’s gender or legal name as indicated in a government-issued identification document only if it is necessary to meet a legally mandated obligation.  Further, nothing precludes an employer and employee from communicating about the employee’s sex, gender, gender identity, or gender expression when the employee initiates communication with the employer regarding the employee’s working conditions.
• The regulations explain that employers cannot use a Bona Fide Occupational Qualification (BFOQ) defense to justify any different treatment (discrimination) against an individual merely because the individual is a transgender or gender non-conforming individual.

• The regulations provide that equal rest periods must be provided to employees without regard to sex, and that equal, safe and adequate facilities must be provided to employees without regard to sex.
• The regulations provide that employers must permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth and without having to show proof of any medical treatment or other identity, to use a particular facility.  However, employers with single-occupancy facilities [e.g. restrooms] under their control shall use gender-neutral signage for those facilities.  Also, to respect the privacy of all employees, employers shall provide feasible alternatives such as locking toilet stalls, staggered schedules for showering, and shower curtains to ensure privacy.
• The regulations prohibit an employer from imposing any physical appearance, grooming or dress standard which is inconsistent with an individual’s gender identity or gender expression, unless the employer can establish a business necessity under the regulations.
• The regulations provide that if an employee requests to be identified with a preferred gender, name, and/or pronoun, including gender-neutral pronouns, an employer who fails to abide by the employee’s stated preference may be liable under FEHA, except in the case where an employer is permitted to use an employee’s gender or legal name when necessary to meet a legally-mandated obligation.

What Should Employers Do?  The overarching message in the workplace should be that a person’s sexual identity and sexual expression should be respected and that everyone should comply with company policies and applicable law.  Employers should review and update their policies if necessary to comply with the new regulations.  They should also train their managers and supervisors on the new regulations to ensure that they are aware of them and act accordingly.  Regardless of their political or moral viewpoint on the issue, the regulations are law and an employer (through its managing agents) must comply.  Remember that the attorneys in Weintraub Tobin’s Labor & Employment Department are always available to assist in both policy review and supervisor and management training.

For a copy of the text of the regulations go to:  https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/FinalTextRegTransgenderIdExpression.pdf

It stands to reason that employers may not want employees recording conversations in the workplace.  Recording conversations could discourage the free flow of open ideas.  The recordings could also contain confidential or sensitive information that the employer does not want floating around the digital universe.  In some states, recording workplace conversations may even be illegal if not all parties consent to it.  Mindful of these concerns, employers may wish to enact policies precluding video or audio recording at work.  According to the Second Circuit, however, employers who do so risk violating the National Labor Relations Act (“NLRA”) if their policies are overbroad.  In a June 1, 2017 summary order, the court upheld a National Labor Relations Board’s Order finding that Whole Foods Market, Inc.’s policy did just that.

To read the full article, visit the HRUSA blog at http://blog.hrusa.com/blog/no-recording-policy-violates-the-nlra/.

By: Katie A. Veatch

On May 30, 2017, the Mayor of New York City (“NYC”) signed into law five bills related to workplace reform in the retail and fast food industries. These laws are set to take effect on November 26, 2017.

New Laws Applicable to Retail Industry in NYC

Intro 1387 (On-Call Scheduling), bans the practice of on-call scheduling for retail employees in NYC. The law applies only to retail employers with twenty or more employees at one or more stores within NYC. Under this new law, an employer will be prohibited from (1) scheduling a retail employee for an on-call shift; (2) cancelling a work shift with fewer than 72 hours’ notice; (3) requiring a retail employee to work with fewer than 72 hours’ notice, unless the employee consents to working in writing; and (4) requiring a retail employee to contact an employer to confirm whether the employee should report for his/her scheduled shift in the 72 hours before the start of the shift. However, a retail employer is permitted to make schedule changes or cancel shifts within the 72 hour window if it is to give an employee time off or to allow an employee to voluntarily trade shifts with another employee or if the employer’s operations cannot begin or continue.

Read the New Laws Applicable to the Fast Food Industry in NYC here: http://blog.hrusa.com/blog/new-laws-affecting-new-york-city-retail-and-fast-food-workers/

Since the passage of the California Fair Pay act in late 2015 (effective January 1, 2016) and its recent amendments, many employers and commentators have criticized the statute for imposing a vague and dangerous standard on California employers.

The California Fair Pay Act replaces the former “equal work” standard of the Equal Pay Act with a “substantially similar” standard.   The California Fair Pay Act (Labor Code section 1197.5) states:   “(a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions …”.

Some adrenalized commentators have said that any effort to actually conduct this analysis is a fool’s errand. The standard is so vague and shapeless that it is functionally meaningless until a court sharpens the standard with defined tests and definitive holdings. Other commentators suggest that employers abandon any attempt to determine if any two types of work are substantially similar to one another (an analysis required by the statute) and instead focus on the second half of the statutory analysis, which allows employers to justify wage disparities (along race or gender lines) on the basis of a bona fide factors other than sex or race.

While it is true that courts have not yet ordained a specific analysis on how to determine substantially similar work, the statutory standard is not so vague as to defy either analysis or application.  Legislative examples propose that under this standard a male school janitor and a female hotel housekeeper may be engaged in substantial similar work.

Even if the standard were so vague as to defy application (and I don’t believe it is) employers are well served to act reasonably and based upon a good faith and reasonable interpretation of the law. Yes, a court may later hold that some part of any analysis used is incorrect, but the use of a reasonable analytic process (before any court decision considering the law) will likely place an employer in a better position than a company that has skipped the first step of the required analysis.

To read this full article and a general approach to conducting the “substantially similar” work analysis, click here.

In Green v. Dallas County School District, a Texas jury found that a Dallas County School District (the “School District”) violated Texas disability discrimination laws when it fired a bus monitor who lost control of his bladder on a school bus.  The bus monitor, Paul Green, suffered a known disability – congestive heart failure – and had disclosed that he was taking a diuretic drug for his heart condition. The District said it did not fire the bus monitor “because of” his disability (congestive heart failure) but because of the health and safety violations that occurred. On appeal, the Court of Appeal agreed and reversed the jury verdict.  Green asked the Texas Supreme Court to consider whether the jury could have found he was fired because of a different “disability” – his urinary incontinence.

To read the rest of this article, visit HRUSA at http://blog.hrusa.com/blog/texas-bus-monitor-termination-for-incontinence-is-discrimination/

On April 13, 2017, Governor John Hickenlooper approved Colorado House Bill 17-1021 (“HB 17-1021”) which amends Section 8-1-115 of the Colorado Revised Statutes.  In summary, HB 17-1021 provides that the information an employer provides to the Colorado Department of Labor and Employment (“CDLE”) in connection with complaints and investigations into violations of the State’s wage and hour laws can be treated as a public record and released to the public pursuant to the Colorado Open Records Act, unless the CDLE determines that the information is a trade secret.

To read the rest of the article, visit the HRUSA blog at: http://blog.hrusa.com/blog/colorado-payroll-information-may-become-public-record/.

By Jessica A. Schoendienst

Compensatory time off or “comp time” is paid time off that is provided to employees instead of overtime pay.  Comp time has been used by public employers for decades.  There have been several attempts in the past to legalize comp time for private sector employers.  So far, no changes to the law have been passed.

On May 2, 2017, H.R. 1180, the Working Families Flexibility Act of 2017, passed the U.S. House of Representatives 229-197.  All Democrats and six Republicans voted against the bill.  H.R. 1180 must also pass the U.S. Senate in order to be presented to the President.  The White House Administration has already indicated that if H.R. 1180 were presented to the President in its current form, his advisors would recommend that he sign the bill into law.  However, given that at least some Democrats must vote in favor of the bill in the Senate it is unlikely that the President will ever be given this chance.

Read about the amendments to the Fair Labor Standards Act (FLSA) at http://blog.hrusa.com/blog/private-sector-comp-time-dont-count/.

By: Michelle L. Covington

A recent National Labor Relations Board (NLRB) decision affirmed the Board’s position on employer email policies under the National Labor Relations Act (NLRA).   In Purple Communications, Inc. and Communications Workers of America, AFL-CIO the Board held that employees who may use their employer’s email system for work-related communications have the right to send off-the-clock email communications through their work email system that are protected under the NLRA.  The Act applies to most employees in the private sector, regardless of whether they are unionized, and gives employees the right to participate in activities or communications that are for their mutual aid or protection regarding the terms and conditions of employment.  This could include complaints about management, wages, shift schedules, or safety concerns.

To read the full article, visit the HRUSA page at: http://blog.hrusa.com/blog/recent-nlrb-decisions-on-email-and-protected-activities/.