Employer Law Report

New top lawyer for NLRB signals change

Peter Robb is President Trump’s new General Counsel for the National Labor Relations Board (NLRB). He was confirmed by the Senate in November. The General Counsel is the top lawyer guiding NLRB enforcement activity. Direction from the General Counsel’s office influences how NLRB Regional Directors enforce the law and has a significant impact on legal issues facing union, as well as non-union, companies. In a memo issued on December 1 to all of the NLRB Regional Offices around the country, Mr. Robb signaled his intention to systematically change many of the more controversial labor law enforcement initiates pursued by the NLRB during the Obama administration. Continue Reading

SCOTUS allows travel ban 3.0 to take effect

The third time is the charm for the Trump Administration, for now. On Monday, Dec 4, 2017, the U.S. Supreme Court issued an order allowing President Trump’s third attempt at a travel ban to take full effect while the issue of its constitutionality is litigated in the circuit courts. This decision has the practical effect of lifting hard-fought blocks against the controversial ban.

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DOT amends drug testing rules effective Jan. 1, 2018

In response to the nation’s opioid epidemic, the Department of Transportation (DOT) amended its testing program requirements to require inclusion of four semi-synthetic opioids, hydrocodone, oxycodone, hydromorphone and oxymorphone, to the required drug testing panel. DOT also added methylenedioxyamphetamine (MDA) to the panel and removed methylenedioxyethylamphetaime (MDEA) as a confirmatory test analyte as redundant since MDA is a metabolite for MDEA. Because the added opiods can be legally taken pursuant to a doctor’s prescription, this may result in more initial positives that trigger MRO review and require the MRO to evaluate whether the employee is taking the opioid pursuant to a valid prescription.

The new rule adds three “fatal flaws” to the list of when a laboratory would reject and discard a specimen and modifies the “shy bladder” process so that the collector will discard certain questionable specimens and proceed under the shy bladder process for the second specimen.

The new rule also removes the requirement for consortium/third party administrators to submit blind specimens because it is unneeded and imposes unnecessary administrative burdens and costs.

Companies that are covered by DOT should amend their drug testing programs accordingly before Jan. 1, 2018. Companies that voluntarily comply with the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs should consider amending their programs as well.

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

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