Category Archives: Employment

Dust off Those Handbooks: NLRB Restores Sanity to Employment Policies

Contributed by JT Charron, December 27, 2017

Thirteen years ago the National Labor Relations Board issued its decision in Lutheran Heritage Village-Livonia, 343 NLRB 646, which held that facially neutral work rules violated the National Labor Relations Act if employees would “reasonably construe” the rule to restrict the employees’ rights to engage in protected concerted activity under Section 7 of the Act. Following that decision, the Board used the “reasonably construe” standard to invalidate even the most well intentioned work rules. See e.g., T-Mobile USA Inc., April 29, 2016 (finding that employer’s policy requiring employees to maintain a positive work environment violated the NLRA).

On December 14, in The Boeing Company, 365 NLRB 154, the Board overturned Lutheran Heritage and articulated a new test for evaluating the validity of facially neutral work rules. In place of the unworkable “reasonably construe” standard, the Board introduced a balancing test for analyzing facially neutral work rules. Under the new standard, the Board will “evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.” (emphasis in original).

Workplace investigation

Examining Documents

Utilizing this standard, the Board reversed the administrative law judge’s decision that Boeing’s no-camera rule violated the NLRA. Instead, it found that the employer’s legitimate business reasons for the policy — protecting proprietary information and national security interests — outweighed any potential Section 7 violation. The Board also articulated three broad categories of work rules that would result from the new balancing test:

  • “Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.”
  • “Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.”
  • “Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.”

Boeing is a big win for employers and represents a clear change in the Board’s attitude towards work rules. While only time — and additional Board decisions — will tell, the new standard should provide “far greater clarity and certainty” to employers in drafting workplace policies. Additionally, employers may want to consider taking a second look at policies previously removed and/or revised in the wake of Lutheran Heritage and its progeny. Finally, as we head into 2018, employers should evaluate all workplace policies in light of the Board’s new balancing test and be prepared with strong justifications for any policies that have the potential to infringe on an employee’s rights under the Act.

Seventh Circuit Upholds Wisconsin’s Right-to-Work Law

Contributed by Carlos Arévalo, July 21, 2017

On July 12, 2017, a three judge panel in the seventh circuit unanimously affirmed District Judge J.P. Stadtmueller’s ruling dismissing a lawsuit filed by two International Union of Operating Engineers (IUOE) locals that challenged the validity of Wisconsin’s right-to-work law. Judge Stadtmueller’s dismissal in September 2016 was based on the seventh circuit Sweeney v. Pence 2014 decision that upheld Indiana’s “nearly identical” law.

The Wisconsin law provides that “no person may require, as a condition of obtaining or continuing employment, an individual to…become or remain a member of a labor organization [or] pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization.”

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Black and white gavel

In Sweeney, the seventh circuit determined that the National Labor Relations Act did not preempt Indiana’s right–to-work law, even if it prohibited the mandatory payment of any dues or fees to unions, and it did not result in a taking in violation of the Fifth Amendment. The court reasoned that unions are “justly compensated by federal law’s grant to [unions] the right to bargain exclusively with…employer[s].”

On this appeal, the IUOE conceded that Sweeney controlled, but argued that it was wrongly decided and should be overturned. The IUOE relied on a strong dissent in Sweeney and the close en banc vote to rehear it. Writing for the panel, however, Judge Joel Flaum rejected these arguments and noted that they were not “compelling reasons” to overturn a recent decision. Judge Flaum also added that the unions failed to direct the court to any intervening development in statutory, Supreme Court, or other intermediate appellate court decision undermining Sweeney’s validity.

The seventh circuit’s decision affirming the Wisconsin’s 2015 law suggests a continuing trend favoring the right-to-work movement at the judicial and legislative levels of government. In February of this year, Missouri enacted its right-to-work law becoming the 28th state with a right-to-work law on the books, closely following Kentucky’s adoption of its own law in January. Opponents in Missouri have sought a referendum seeking to repeal the law, but their efforts suffered a setback when union-led referendum summaries were ruled “unfair and insufficient.” In Kentucky, labor organizations have sued seeking to block the law.

At the federal level, Republican Congressmen Steve King of Iowa and Joe Wilson of South Carolina re-introduced the National Right to Work Act bill (an effort that went nowhere in 2015) in the hope that a Trump administration would approve such legislation. Within a month, Senator Paul Rand of Kentucky introduced similar legislation in the Senate. These bills would amend the National Labor Relations Act and Railway Labor Act to prohibit the use of union security clauses requiring union membership and payment of dues and fees.

Where all of this leads is unclear, but we can be certain of one thing for the near future – this battle will continue to be fought all across the country.

USCIS Releases New Form I-9

Contributed by Sara Zorich, July 18, 2017

On July 17, 2017, the United States Citizen and Immigration Services (USCIS) announced the release of a new version of the Form I-9, version 07/17/17 N.  This new version of the Form I-9 does not have sweeping substantive changes like the current form issued in November 2016. In fact, the changes are primarily re-naming and re-numbering.

September 18

September 18 calendar icon

The one key thing employers must be aware of is that the issuance of the new version of the Form I-9 impacts what version an employer may use going forward. According to the USCIS press release, until September 17, 2017, employers can use either: (1) Form I-9 revised version (07/17/17 N) or (2) Form I-9 with a revision date of 11/14/16 N. On Sept. 18, 2017 employers must use the revised form with a revision date of 07/17/17N and no other versions of the form will be acceptable for newly completed Form I-9’s as of that date.

The issuance of a new form I-9 DOES NOT mean that employers must redo all previously completed Form I-9’s. As stated, this new version will be used on a going-forward-basis no later than September 18, 2017.

A copy of the new Form I-9 can be found on the USCIS website.

USCIS has also updated that Handbook for Employers (M-274) which provides guidance for completing for Form I-9. A copy of the most recent M-274 can also be found on the USCIS website.

Employers should ensure that those responsible at their company for completing the Form I-9 have a copy of the correct version.

Missouri Has Become the 28th Right-to-Work State

Contributed by Beverly Alfon, February 10, 2017

On February 6, 2017, the newly elected GOP Governor Eric Greitens, signed into law a right-to-work (RTW) bill that passed the state’s Republican-controlled state legislature.

Nuts and Bolts of the Missouri RTW law

  • Effective date:  August 28, 2017
  • Who it applies to:  Both private and public sector employers (except those in the airline and railroad industries, as well as certain federal employers).
  • What it prohibits:
    • No employee can be required to become or remain a union member as a condition of employment.
    • No employee can be required to pay dues, fees or assessments of any kind to a union (or any equivalent of a dues payment to any charitable organization).
  • Penalties for violations:  Criminal sanctions – a violation is a class C misdemeanor, punishable by a fine of $750 and up to 15 days in jail. Civil sanctions – private parties may obtain injunctive relief, damages and an award of attorneys’ fees.
  • Effect on collective bargaining agreements:  For collective bargaining agreements (CBA’s) entered into before August 28, 2017, the law has no effect. However, the law will apply to any CBA renewal, extension, amendment or modification after August 28, 2017. This will likely jolt Missouri unions to seek contract extensions of existing CBA’s in order to delay the impact of the law.

Unions Continue to Battle

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Flag of Missouri

The Missouri AFL-CIO has submitted different versions of a proposed initiative petition to the secretary of state’s office that is aimed at reversing the RTW law. Basically, with enough signatures, it would present the opportunity for Missouri voters to decide in 2018 whether to adopt a constitutional amendment that would protect contracts that require employees to pay union representation fees.

Perspective

Seven of eight states that surround Missouri have existing right-to-work laws, including Kentucky, which passed a right-to-work law last month. The current tally of RTW states includes: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Carolina,  North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming. Just last week, the New Hampshire senate passed a RTW bill, which is awaiting passage by the state House.

On a federal level, two Republican Congressmen re-introduced the National Right to Work Act last week. The bill would amend the National Labor Relations Act and the Railway Labor Act to prohibit the use of union security clauses which require union membership and payment of dues and fees.

If there was any doubt, this flurry of activity confirms that the right-to-work movement is recharged.

Employing Students in the STEM OPT Program Just Got Much More Complicated for Employers

Contributed by Sara Zorich

On March 11, 2016, the new rules regarding the STEM (Science, Technology, Engineering, Math) OPT program were posted in the Federal Registrar and will take effect on May 10, 2016.

The new STEM program allows students to be approved for work authorization for 24 months vs. the previous 17 month program and allows current students to apply for an additional 7 months of work authorization.

job training, classroomWhile the additional work eligibility is good news for both students and employers, the new rules subject employers to heighten compliance requirements including:

  • Employers and students will be required to create and abide by a training plan for each STEM OPT student. This plan must include:
    1. Details about the assignments and tasks the student will carry out and how they relate to the student’s degree
    2. Specific skills, knowledge and techniques the student will learn and how those goals will be achieved
    3. Explanation of employer oversight of the student
    4. Information about the measures and assessments of the student’s acquisition of new skills
  • The student and employer representative responsible for the student must sign an annual evaluation report, mid-point evaluation and final evaluation.
  • The student and employer must complete the new Form I-983 as part of the application process. As part of completing the Form I-983, an employer must attest that:
    1. It has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity
    2. The student will not replace a full- or part-time, temporary or permanent U.S. worker
    3. The opportunity will help the student attain his or her training objectives
  • Employers hiring STEM OPT students can be subjected to Department of Homeland Security site visits to verify whether the employer is meeting the program requirements and employer notification requirements.

Furthermore, the rule retains the requirement that the employer be registered with E-Verify in order to employ a STEM OPT student.

Any applications filed by a student for participation in STEM OPT on or after May 10, 2016 are subject to the new rule. Therefore, employers must analyze their current and future participation in the STEM program and should consider the following:

  • Does the company want to participate in the STEM OPT program going forward? If yes, is the company prepared for the additional compliance requirements?
  • How is the company going to address students who want to apply for the additional 7 months requiring the current employer to comply with the new rules/requirements?
  • What the company can and cannot say during the hiring process to potential employees regarding the company’s position on employment based sponsorship of employees.

Through this new rule, the Government has sent a clear message that it is making it much more complicated for employers to hire foreign workers. Employers should contact immigration and employment counsel to address the application of this new rule to their company.

 

Chicago Federal District Court Refuses to Apply Fifield Two Year Rule

Contributed by Jeff Glass

Readers of this update know that Illinois radically changed restrictive covenant law in Fifield v. Premier Dealer Services Inc., 2013 IL App. (1st) 120327.  In Fifield, the court required two years of at-will employment as consideration for a post-employment non-solicitation or non-compete clause entered into at the outset of employment, even if the employee voluntarily quit. The Illinois Supreme Court declined to review Fifield despite the requests of business groups and employer advocates. Since then, Fifield has remained controversial, with one appellate court and a few federal district courts declining to apply the two year rule. However, other courts have followed it and it has not been overruled, so employers ignore it at their peril.

In Traffic Tech, Inc. v. Kreiter, Case No. 14-CV-7528 (N.D. Ill. Dec. 18, 2015), the federal district court (Judge Dow) declined to grant a motion to dismiss filed on the basis of Fifield. The defendant employee had signed an employment agreement containing a non-solicitation clause when he joined the Plaintiff, but then he quit roughly a year later. Under the Fifield two year standard, the restrictive covenant should have been unenforceable. But the court denied a motion to dismiss filed on this basis, holding that “Illinois Supreme Court is not likely to adopt a two-year, bright line rule in assessing whether an employee was employed for a ‘substantial period of time’ so as to establish adequate consideration to support a post-employment restrictive covenant.” The court noted that the last time that restrictive covenants were discussed by the Illinois Supreme Court, in Reliable Fire Equip. Co. v. Arredondo, 965 N.E.2d 393, 403 (Ill. 2011), the court held that the enforceability depended on a totality of the circumstances inquiry that was inconsistent with the bright line approach established by Fifield. This view is consistent with the opinions expressed in this blog and elsewhere that were critical of the Fifield decision.

Fifield remains the law of Illinois but it is under attack. We will keep you updated in this blog.

Fifth Circuit Rules that Denial of Employee’s Attempt to Rescind Resignation Can Be Unlawful Retaliation

Contributed by Steven Jados

Last month, in Porter v. Houma Terrebonne Housing Authority Board of Commissioners (“HTHA”), the U.S. Court of Appeals for the Fifth Circuit ruled that a former employee’s claim of unlawful retaliation based on complaints of sexual harassment should proceed to trial.

Such a ruling is not necessarily unusual, but what makes this one unique is  the court held that an employer’s refusal to let an employee rescind her resignation can be an “adverse employment action”—one of the three prima facie elements of a claim for unlawful retaliation under Title VII of the Civil Rights Act of 1964.

Tyrikia Porter, the employee at iresignationrescindssue, tendered her resignation and before her last day of work, testified in a grievance hearing that she had been sexually harassed by the HTHA’s executive director.  Both prior to and after the hearing, HTHA management encouraged Porter to rescind her resignation. Shortly after her resignation date, Porter accepted that encouragement and sent the HTHA a letter asking to rescind her resignation.  Porter’s direct supervisor forwarded the letter to the Executive Director, with the supervisor’s recommendation that Porter be allowed to come back to work. The Executive Director refused Porter’s request.

Faced with this scenario, the court repeatedly stated that the “context” of the employer’s refusal was absolutely critical in determining whether an adverse employment action occurred. That context, according to the court, showed that Porter might have legitimately expected that she would be allowed to rescind her resignation.

In reaching that conclusion, the court noted that several HTHA representatives actually asked Porter not to go through with her resignation, and that her direct supervisor recommended that the Executive Director accept the rescission.  There was also evidence that the Executive Director had never before made a separation decision contrary to the direct supervisor’s recommendation. The court also noted that Porter had already asked—and been allowed—to continue working for a month longer than her originally-planned resignation date.

With those facts in mind, the court ruled that it was both reasonable for Porter to believe she would be allowed to rescind her resignation, and that she might have been dissuaded from complaining of sexual harassment had she known it would affect whether or not she was allowed to rescind her resignation.

Employers should note that this decision does not change the fact that courts generally have not accepted refusals to rescind resignations as adverse employment actions for discrimination claims, as opposed to retaliation claims. But employers must also remember that courts have, for many years, ruled that the definition of an adverse employment action is much broader in retaliation claims, as compared to discrimination claims. Bearing all of that in mind, the Fifth Circuit’s ruling is a clear warning to employers across the country that mixed signals from management and deviations from prior practices—whether in the context of a resignation or any other employment action—may give rise to unlawful retaliation claims.