Employer Law Report

Scam alert: USCIS does not request I-9 forms by email

U.S. Citizenship and Immigration Services (USCIS) recently posted notice advising employers of a scam operation requesting I-9 forms. USCIS, as well as any other investigating government agency, will never request I-9 forms by email. There are reports of recent scam operations that appear to come from a government email address requesting I-9 forms for recently hired employees. Employers should delete any emails requesting emails or uploaded copies of I-9 forms. The full government warning states:

Scam Alert: USCIS Does Not Request Forms I-9 By Email

USCIS has learned that employers have received scam emails requesting Form I-9 information be sent to the fraudulent email address news@uscis.gov. You should neither respond to these emails nor click the links in them. Employers are not required to submit Forms I-9 to USCIS.

Employers are required to prepare a Form I-9 on behalf of every new employee. The employee must prepare section one of the form on or before the first day of employment, and employers must review the supporting documents and complete section two by the third day of employment. Employers are required to retain the I-9 form, but do not file it with USCIS. Audits of I-9s are conducted by the Immigration and Customs Enforcement or the Department of Labor and are always accompanied by written notice from the agency.

We recently posted an explanation of the new Form I-9, which is required for all employees hired on or after Sept.18, 2017.

Porter Wright offers tailored HR Audits

Porter Wright is pleased to announce that it is now offering customized audits of the specific HR policies and practices you select at custom, fixed-cost or other fee arrangements that will give you certainty about the expense before the audit even begins. Simply choose from the menu of HR audit services we offer and work with one of our labor and employment attorneys to determine a price for those services. Our tailored HR audit allows you to focus on those areas of concern specific to your business, while giving you the certainty and predictability regarding cost that your business requires.

Click here for more information about an HR audit tailored to your business, including a list of the HR audit services we offer.

How employers can help employees after a natural disaster

In recent months we have seen a significant number of natural disasters – from Hurricanes Irma to Harvey to Maria and the massive wild fires crossing Northern California. Our colleague, Abby Brothers, shares the tax-free options employers can use to support their employees and communities. Check out her full post on Employee Benefits Law Report, Federal disaster relief available to employees in aftermath of natural disasters.”

Workers’ compensation law aiming to reduce appeal time is constitutional

The Ohio Supreme Court has definitively decided that an employee cannot unilaterally dismiss an employer-initiated appeal in a workers’ compensation case; rather, the employer must consent to the dismissal.

After a workers’ compensation claim proceeds administratively before the Industrial Commission, any party may appeal the Commission’s decision to permit the employee to participate in the workers’ compensation system to the Court of Common Pleas. After an appeal is filed, the employee must file a petition/complaint within 30 days.

Regardless of which party files the appeal, the employee is the plaintiff in the workers’ compensation case. While the court case is proceeding on an employer-initiated appeal, the employee continues to receive workers’ compensation benefits. However, should the court reverse the Industrial Commission’s decision and deny the claim, the employer receives a refund of costs previously paid to the employee. Continue Reading

The OFCCP strikes, puts State Street’s pay inequity problem out on Front Street

Well known asset management company State Street Corporation will pay $5 million to settle allegations of pay inequity raised by the Office of Federal Contract Compliance Programs (OFCCP) in an audit. OFFCP alleged that the company paid female executives less than men and black executives less than whites at its Boston headquarters. The landmark settlement agreement is the largest back pay settlement collected by OFCCP since 2015.

By way of background, OFCCP audits federal contractors and subcontractors for compliance with workplace affirmative action and nondiscrimination requirements. OFCCP conducted a compensation analysis of State Street’s downtown Boston office in December 2012. According to OFFCP, that analysis revealed that, since at least December 2010, there were “statistically significant” disparities in compensation between male and female workers and black and white workers even when “legitimate factors affecting pay” such as performance, experience and education were taken into account. Continue Reading

When can an employer be found liable for ‘supervisor’ harassment?

In an opinion issued this week, the Sixth Circuit Court of Appeals (which covers Ohio, Michigan, Kentucky and Tennessee) affirmed dismissal of a case alleging same-sex sexual harassment primarily based on the prompt and effective action taken by the employer in response to the plaintiff employee’s complaint.

Plaintiff (Hylko) and the alleged harasser (Hemphill) worked closely together at U.S. Steel. Hemphill trained Hylko and assigned his duties. Both reported to an area manager.

Hylko claimed that Hemphill harassed him as soon as they started working together, that Hemphill regularly asked Hylko about his sex life and that Hemphill grabbed his buttocks and private parts.

Hylko complained to management, who offered him a transfer to a different area of the plant, which he accepted. Management then met with Hemphill, who admitted some of the harassment. They then gave him a verbal warning, one week suspension and demotion to shift manager and made him take a leadership class. No harassment occurred again after that.

The standard for employer liability for hostile work environment harassment that does not result in a tangible adverse employment action depends typically on whether or not the harasser is the victim’s supervisor. An employer is vicariously liable for a hostile work environment created by a supervisor unless it can prove that (a) the employer exercised reasonable care to prevent and correct promptly any harassment; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. By contrast, an employer is liable for hostile work environment harassment by employees who are not supervisors only if the alleged victim can prove the employer was “negligent in failing to prevent harassment from taking place.” In assessing such negligence, the court will look to such factors as the nature and degree of authority wielded by the harasser and evidence the employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints or effectively discouraged complaints from being filed. In essence, the supervisory status of the alleged results in a shifting of the burden of proof with respect to whether the employer has taken necessary steps to prevent and respond to allegations of harassment.

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Non-union employers may have to allow employees “representation” in some investigation interviews

Many thanks to Arslan Sheikh for his assistance in preparing this post.

Presume your workplace is non-union. You are interviewing an employee about facts that might lead to disciplining her. She tells you she wants a co-worker to sit in on the interview as her representative to advise her. The lawyers that advise the National Labor Relations Board (NLRB) are taking the position that you have to allow it.

Last week, the office of the general counsel to the NLRB issued an advice memorandum that has significant implications for all non-union employers. The memo concludes that an employee in a non-union workplace should be entitled to co-worker representation during an investigatory interview by the company. This is contrary to existing NLRB precedent which holds that representation rights like this do not apply where there is no union representative. As explained below, whether the general counsel’s advice becomes law remains to be seen. But in the meantime, employers are wise to be aware of this advice memo because it will likely influence the way NLRB regional offices act in enforcement proceedings at least for now. Refusing an employee’s request for representation in an interview might result in a local NLRB office issuing a complaint and forcing the employer to fight it out in a hearing. Continue Reading

Paying workers after inclement weather closes businesses

In the wake of Hurricane Irma, many employers have questioned their obligation to pay employees while their businesses have been closed. The answer will be different for employees who are exempt and non-exempt under the federal Fair Labor Standards Act (FLSA).

Under the FLSA, employees who are exempt from overtime requirements must receive their full salary for any week in which the employees perform work, regardless of the number of days or number of hours of work performed in that week. Thus, if an exempt employee only works one day during the week, he or she is still entitled to his or her full salary. When an office is closed for less than a week due to inclement weather, the exempt employee is entitled to his or her full salary, even if the employee does not have any available paid time off.

However, nonexempt employees must be paid according to the number of hours worked during any particular workweek and will receive overtime for any hours worked above 40 during a week. If an office is closed because of inclement weather, the FLSA does not require employers to compensate nonexempt employees who are not performing work during the closure. Any paid time off used by nonexempt employees is not working time and will not count toward hours worked for purposes of calculating overtime. Nonexempt employees must perform more than 40 hours in a workweek to be paid overtime.

In addition to federal law requirements, employers should review any inclement weather or other policies to see if they afford employees greater rights than provided under law. Employers should also check their policies to ensure they are consistent with or more generous than federal and/or state law. If you have employees outside of Florida who are affected by business closings due to weather, check your state law for different or additional obligations.

President Trump nominates Peter Robb to serve as general counsel to the National Labor Relations Board

Many thanks to Arslan Sheikh for his assistance in preparing this post.

Last week, President Trump nominated Peter Robb, a management-side labor attorney, to serve as general counsel to the National Labor Relations Board (NLRB). As the top lawyer for the NLRB, the general counsel has a great many responsibilities, which include giving advice to the regional offices of the NLRB concerning enforcement issues. The advice is often communicated in advice memoranda. These advice memos are critical because they advise the regional offices on how to interpret and to enforce labor law. It is the regional offices that process unfair labor practice charges and union representation petitions. As a result, the office of the general counsel can have a significant influence on what employers can expect to face in NLRB enforcement proceedings.

If Robb is confirmed by the Senate, which is likely, he will take over when current General Counsel Richard Griffin’s four-year term expires on Oct. 31, 2017. Based on his professional background and experience, there is reason to expect that Robb will take a more employer-friendly position on many labor law issues than his predecessors did during the Obama administration. For example, Robb has been critical of the NLRB’s efforts to shorten the timeframe in which an employer can react to a union election petition. Continue Reading

Workers’ compensation law changes

Recently, Gov. Kasich signed into law the workers’ compensation budget. In addition to funding the Ohio Bureau of Workers’ Compensation (BWC), the bill enacted a number of substantive changes to the law. These changes are effective Sept. 29, 2017. Below are some of the significant amendments impacting Ohio employers:

  • Decreases statute of limitations: For claims with dates of injuries on or after Sept. 29, 2017, injured workers must file a claim application within one year of the date of injury. This is a reduction from the current two year time limit.
  • Extends deadline to file court appeal if settling claim: The new law extends the time to appeal a final ICO order to the court of common pleas from 60 days to 150 days if the parties file a “notice of intent to settle” the claim within 30 days of receipt of the appealable order.
  • Prohibits payment of compensation to incarcerated dependents: Previously, dependents were eligible to receive benefits even if incarcerated. Further, this law applies to incarcerations, regardless of whether in jail or prison.
  • Permits the BWC to waive 90 day examinations: For state-funded employers, typically the BWC schedules an examination to evaluate an injured worker’s extent of disability after 90 days of being off work. Now the BWC can waive that examination unless the employer objects.
  • Increases amounts included in handicap reimbursements: Settlement amounts are treated as a reducible cost for handicap reimbursements.
  • Dismisses PPD applications: The BWC may now dismiss C-92 applications if an injured worker fails to attend a PPD examination. Previously these claims were suspended, thereby tolling the statute of limitations.
  • Raises the maximum attorney fees for a successful court appeal to $5,000.

Most of these changes impact claims with dates of injuries occurring on or after Sept. 29, 2017. Employers should double check to determine whether rules governed by these new amendments apply or whether the former rules apply.

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