Category Archives: employers

The Government is Back For Now… Employers Should Address E-Verify Compliance Over the Shutdown Period

Contributed by Sara Zorich, January 29, 2019 

The US Government was shut down for over a month, and the government’s E-Verify system was down from December 22, 2018, to January 27, 2019. During the shutdown, employers who are E-Verify users were unable to enter any of their newly hired employees into the E-Verify system.  But E-Verify users shouldn’t fret.  USCIS is giving you a grace period to catch up.  The Department of Homeland Security and USCIS have updated the E-Verify website to address the shutdown.

The website states: “Now that E-Verify operations have resumed, employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was not available. You must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, select “Other” from the drop-down list and enter “E-Verify Not Available” as the specific reason.”

If you have an employee who received a Tentative Non-Confirmation (TNC) during the shutdown (or just before) and informs the employer no later than February 11, 2019 that they want to contest, USCIS has indicated that employers should add 10 federal business days to the date on the employee’s “Referral Date Confirmation” notice, and give the employee the revised notice. Federal business days are Monday through Friday and do not include federal holidays. As written, this statement could be interpreted to mean, for instance, that an employee who received a TNC on December 21, 2018, would originally have had until January 4th (8 federal business days) to visit SSA or DHS.  Adding ten more federal business days would only give a new deadline of January 18th (which is still in the past—and during the shutdown). 

With this in mind, we suggest employers watch the USCIS website for further updates because we expect USCIS to correct this instruction. In the interim, if an employee has chosen to contest the TNC and the employee’s deadline to visit SSA or DHS has passed due to the government shutdown, make sure you inform the employee that they should visit SSA or DHS as soon as possible. Do not terminate the employee until you receive a final non-confirmation from E-Verify.

All of the normal E-Verify deadlines apply to employees hired on or after January 28, 2019.

Must Employees Be Paid For Extreme Weather & Emergency Closings?

Contributed by Noah A. Frank, January 28, 2019

Bad weather caution sign

In light of the current winter storm pounding the U.S. with snow and extreme subzero temperatures, this is a short reminder of when employees must be paid for emergency closures due to inclement weather.

Nonexempt Employees – Generally, hourly workers must only be paid for time they actually work.  They do not need to be paid when the business is closed or closes early due to a weather emergency.  As a side note, when paying a nonexempt employee on a salary basis, state laws may suggest treating compensation more like that paid to a salary exempt employee.

Exempt Employees – When the business is closed and salary exempt employees are willing and able to work, they must still be paid their full salary for the week if they perform any work during the week.  However, if the business is open (or employees can work remotely), and employees choose not to work, they do not need to be paid for full-day absences, and the business may require use of vacation/PTO benefits.  Salary may not, however, be reduced for partial day absences.

There Are Always Exceptions in Employment Law

Handbooks may provide for paid leave in the face of extreme weather.  In particular, “cookie cutter” handbooks may contain hidden traps (which is our reminder that businesses should have their handbooks reviewed by employment counsel!).  Similarly, union collective bargaining agreements or other inclement weather policies might create a requirement to pay for missed time.

In a developing national trend, even when the employer is open for business, state and local paid sick leave ordinances may require that employees be permitted to use available paid sick leave with little notice when, for example, a child’s school is closed due to a weather emergency.  Employers should be sensitive to this issue, especially if they have not previously implemented written policies or complied with the requirements of these local ordinances.

Some state and local laws also require reporting pay when employees either report to work and are sent home before working their full shift, or when their schedule is changed or cancelled with insufficient notice.  Such laws may apply to weather closures.

Finally, employee morale and goodwill might dictate that an employer err on the side of paying for missed time. 

Employers should review their employment policies in light of these developing laws and trends to make the determination of whether employees should be paid for a business closure or other weather-related absence.  Experienced employment counsel should also be consulted to make sure the business is operating in a way that avoids needless wage and hour exposure.

Illinois Supreme Court Rules Actual Damages, Injury or Harm Not Necessary in Biometric Privacy Case

Contributed by Carlos Arévalo and Molly Arranz

As reported last November, the Illinois Supreme Court has had in front of it perhaps the seminal case, Rosenbach v. Six Flags Entertainment Corp., regarding Illinois’s Biometric Information Privacy Act (BIPA). Prior to landing before the Supreme Court, the lower (appellate) court had ruled that simply claiming a violation of the notice and consent requirements of BIPA was not tantamount to alleging a compensable injury. Branding such claims only “technical” in nature, the lower court found these were not cases or controversies. If that was all you had, said the appellate court, your BIPA case should be dismissed at the outset. 

Today, in a unanimous decision, the Illinois Supreme Court rejected that approach and ruled that alleging a violation of statutory rights under BIPA is enough. An individual does not have to allege an actual injury in order to qualify as an “aggrieved” person entitled to seek liquidated damages and injunctive relief. “To require individuals to wait until they have sustained some compensable injury beyond violation of their statutory rights… would be completely antithetical to [BIPA’s] preventative and deterrent purposes.”

Under BIPA, entities may not “collect, capture, purchase, receive through trade or otherwise obtain” or store a person’s biometric information without informing an individual in writing about the collection or storage of said information. Further, entities collecting biometric information must specify the purpose for its collection and storage and how long it will be kept. Finally, entities must obtain a written release signed by the individual whose information has been collected. A failure to comply with these requirements gives an aggrieved individual a “private right of action” and allows the recovery of a minimum of $1,000 in liquidated damages, reasonable attorneys’ fees and costs and injunctive relief to anyone who successfully shows a violation. BIPA cases are—almost without exception—brought as class actions, whereby hundreds or thousands of “aggrieved persons” and their alleged damages are lumped together.

With today’s ruling, BIPA’s requirements alone empower private citizens to serve as watchdogs over company policy. The Court explained: “[i]t is clear that the legislature intended for [BIPA] to have substantial force” and “[w]hen private entities face liability for failure to [simply] comply with the law’s requirements … those entities have the strongest possible incentive to conform to the law…” Rosenbach is not an employment case (it concerns a patron’s access to Six Flags); but, it impacts employers’ practices for collecting and maintaining biometric data for time tracking or security purposes. All companies—with any presence in Illinois—should be reviewing policies and protocols because simply failing to comply with the statute’s requirements could result in a firestorm of litigation from affected employees, consumers and patrons.

What should you ensure you are doing today?

  1. Establish and make public (for example, post on the company’s website) a written policy that addresses the purpose(s) of biometric data use, how it will be collected, and how it will be stored.
  2. Be prepared to address any requests for reasonable accommodations based on disability, religious, or other reasons.
  3. If biometric data might leave a closed system, ensure that proper safeguards are in place, including contractual liability shifting.
  4. Ensure that employees whose biometric data is used acknowledge the policy, and authorize its use and collection in writing.
  5. Train supervisors on the company’s policies and practices to ensure consistency.
  6. Have biometric data systems audited to ensure that data is not open to the public or a systems breach.
  7. Finally, consult with competent counsel to ensure that policies and practices comply with relevant law.

Tech Industry Employees Protest for End to Mandatory Arbitration

Contributed by Michael Faley, January 24, 2019

Arbitration title on legal documents

In November, thousands of Google employees walked out of work in protest against the company’s practice of compelling mandatory arbitration in sexual harassment claims. Frequently referred to as “forced arbitration” in the context of the current debate, Google responded by modifying its new hire letters to make mandatory arbitration optional for sexual harassment and assault claims. Several other big-name tech companies followed suit and ended the practice for sexual harassment claims.   

Now on the heels of that initial success, tech industry employees are pushing for an end to all mandatory arbitrations for employee-related claims. Last week, protestors, organized under a group called Googlers for Ending Forced Arbitration, conducted a massive social media campaign pressing Google and other tech companies to eliminate their mandatory arbitration schemes for employee claims. Members of Googlers for Ending Forced Arbitration argue that mandatory arbitration schemes lack transparency and enable misconduct against employees. They view going to court as the solution, and demand that arbitration always be optional. In addition, they seek elimination of onerous confidentiality requirements and want an end to class-action waivers so employees can file similar claims together. 

So far, neither Google nor the other targeted tech giants have signaled a willingness to change their current mandatory arbitration schemes beyond the recent modification for sexual harassment claims. However, groups such as Googlers for Ending Forced Arbitration do not appear to be letting up either. Undoubtedly, the scope and general use of mandatory arbitration clauses will continue to be a hot topic of debate in 2019.

UPDATE: Supreme Court Rules For Workers On FAA “Transportation” Exemption

Contributed by Brian Wacker, January 15, 2019 

Last month, this blog discussed New Prime, Inc. v. Oliveira, a then-pending case before the Supreme Court that presented the question of whether arbitration agreements between trucking companies and independent contractor drivers fall within the “transportation” exemption to the Federal Arbitration Act (“FAA”).   

This morning, the Court unanimously ruled in favor of Mr. Oliveira, affirming the First Circuit and holding that his independent contractor agreement with New Prime is a “contract of employment” under the FAA.  The Court disregarded the characterization of his relationship with New Prime as an independent contractor (as opposed to an “employee”) and found that the FAA’s exemption for “contracts of employment” refers to any “agreements to perform work.” Therefore, Mr. Oliveira’s agreement fell within the FAA’s exemption and his claims were not properly subject to compelled arbitration.  

This is a significant victory for workers, especially considering the unanimity of the Court’s decision, authored by one of its more conservative jurists, Justice Gorsuch. Employers with independent contractors in the transportation field should take note: existing arbitration provisions in independent contractor agreements can no longer be used to shield businesses from the risks, expenses and uncertainty of litigation in court.

Supreme Court May Decide Whether the Equal Pay Act Allows Employers to Consider Prior Salary in Setting Current Salary

Contributed by Allison P. Sues, January 14, 2019  

wage gap concept with blue figure symbolizing men and red pawn women

The Supreme Court may soon answer a question that divides federal courts: may an employer consider an employee’s salary history when setting pay without violating the Equal Pay Act (EPA)? The EPA prohibits employers from paying wages to employees of one sex less than employees of the other sex for equal work. The EPA holds employers strictly liable for differential pay, regardless of whether the employer had a discriminatory intent, unless the employer can show the difference in pay is based on a seniority system, merit system, quality or quantity of production measurements, or a fourth catchall factor.  Federal courts question whether the fourth catchall factor – “a differential based on any other factor other than sex” – allows an employer to set pay based on an employee’s salary history.

The Supreme Court recently announced it will, for the third time, consider a petition for review of the Ninth Circuit’s decision in Rizo v. Yovino, which signals that the Court may take up the case.  In Rizo, the Ninth Circuit held that an employer cannot consider prior salary in setting an employee’s current salary without running afoul of the EPA. Referring to the gender pay gap as an “embarrassing reality of our economy,” the Court noted that allowing employers to refer to prior salaries enabled the marketplace to perpetuate the gender-based wage differential that fueled the enactment of the EPA in the first place. The Court then clarified the meaning of the fourth catchall exception in the EPA, holding that “‘any other factor other than sex’ is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.” 

Should the Supreme Court agree to hear the Rizo appeal, the Court’s ruling would offer some much-needed clarity for the various and conflicting opinions of the federal appeals courts on this issue.  For example, while the Eleventh Circuit has held, similar to the Ninth Circuit, that the catchall exception is limited to “job-related factors,” the Second Circuit has held that this same provision applies to an arguably broader category identified as “business-related reasons.” Taking still another approach, the Seventh Circuit has held that employers may consider prior salary history in setting current pay.  In Wernsing v. Department of Human Services, the Seventh Circuit rejected the argument that basing current salaries on prior salaries inherently perpetuates discrimination. While the court conceded that, empirically, women are paid less than men, the court held that it cannot be assumed that a pay differential is the result of discrimination. Instead, plaintiffs must prove the disparity is based on sex for the specific market at issue. 

While courts grapple with whether the EPA prohibits considering prior salaries, many legislatures are addressing the issue from another angle.  Several states (including California, Massachusetts, Delaware, and Oregon) and cities (including New York City, Philadelphia, and New Orleans) have enacted legislation prohibiting employers from asking employees about their prior salaries in an attempt to ameliorate the gender pay gap. Should the Supreme Court review and affirm Rizo, all employers would be well-advised to follow the lead of these states and cities, and refrain from collecting applicants’ salary histories. Stay tuned as we will continue to provide updates as new information on this area of the law emerges.

Mandatory Vaccine and Health Screens: Employers Should Ensure that Such Actions are Job-Related and Consistent with Business Necessity

Contributed by Allison P. Sues, January 3, 2018

The words HEALTH SCREENING with stethoscope on wooden background

Flu season is here and offers an opportune time to discuss the tricky intersection between the Americans with Disabilities Act (ADA) and employers’ efforts to require mandatory vaccinations and health screenings for employees.  Some employers, especially those in the healthcare field who provide direct services to patients, require employees to pass a health screening or receive certain vaccinations either upon hire or at other periodic intervals. Employers should ensure that these efforts comply with the ADA. 

The ADA allows certain health screenings and inquiries depending on what point in the stage of employment the screening or inquiry takes place. Per the federal regulations supplementing the ADA, employers are generally prohibited from asking any disability-related questions or requesting any medical exams before a conditional offer of employment is extended to the applicant. Once an offer of employment is made, an employer may require a medical examination if the same examination is used for all entering employees in that job category. If an employer uses certain criteria from these examinations to screen out employees, those criteria must be job-related and consistent with business necessity. As for current employees, the ADA generally prohibits employers from requiring current employees to undergo medical examinations or inquiries unless the employer can show that the exam is job-related and consistent with business necessity.

The Eighth Circuit Court of Appeals recently issued an opinion analyzing these very rules and provided further clarity on what types of exams may be deemed job-related and consistent with business necessity for employers working in the healthcare setting. In Hustvet v. Allina Health System, the appellate court affirmed summary judgment for an employer that required that the plaintiff complete a health assessment tracking whether employees had immunity to certain communicable diseases. The health assessment revealed that the plaintiff, who worked in a patient-centered role within the healthcare system, did not have immunity to rubella. When the plaintiff refused to receive a rubella vaccine, her employer terminated her employment. The court deemed the employer’s medical examination to be job-related and consistent with business necessity and therefore held that the employer did not violate the ADA.

The court found that requiring the plaintiff to receive the rubella vaccine was job-related and consistent with business necessity. In so finding, the court reasoned that the employer selected a class of employees – those who interacted directly with patients – who needed to complete a health assessment because that class of employees posed a genuine safety risk, and that the specific assessment allowed the employer to decrease that risk.   The court confirmed that an employer in the healthcare field may require that employees undergo health assessments or receive mandatory vaccinations in order to ensure employee and patient safety by decreasing the risk of communicable disease exposure and transmission. 

Employers who require mandatory health screens or vaccinations should ensure that the examination measures are supported by a job-related reason, consistent with business necessity, apply similarly to all employees within a job category, and are no more intrusive than necessary.  Any information collected through these medical examinations must be collected and maintained on separate forms and maintained in a separate confidential medical file.