Foreign nationals, especially spouses and dependents of nonimmigrant workers and students, are warned that U.S. Citizenship and Immigration Services (USCIS) is revising the Form I-539, Application to Extend/Change Nonimmigrant Status. This form is used by nonimmigrants to extend their stay in the U.S. or change to another nonimmigrant status, as well as for F and M students applying for reinstatement. The new form was issued on March 11, 2019 and after March 21, 2019, USCIS will accept only the newly revised version of the form, with an edition date of Feb. 4, 2019. All other versions of the form, including the current one dated Dec. 23, 2016, will be rejected. Additionally a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status, generally used to extend or change status of dependent children, has been being revised and published. Continue Reading
Last week, the United States Department of Labor (DOL) was reportedly set to propose a new regulation that would update time-and-a-half pay requirements for all hours worked beyond 40 hours a week. The department’s proposed rule would raise the currently-enforced salary threshold, thus extending overtime protection to more workers. This would be the first such update to the salary threshold since 2004.
On March 7, 2019, the DOL announced a Notice of Proposed Rulemaking (NPRM) to update the salary threshold from $23,660.00 annually to $35,308.00 annually. In other words, workers who make less than about $35,308.00 per year would be automatically eligible for time-and-a-half pay for all hours worked beyond 40 a week under the DOL’s proposal. Importantly, the proposed rule does not modify the “duties test,” a test used to determine whether workers who make more than the salary threshold are entitled to overtime wages. Furthermore, the proposed rule does not establish automatic, periodic increases of the salary threshold. Instead, the DOL is soliciting comments form the public regarding how the DOL should update overtime requirements every four years. The DOL released these details on its website ahead of the Federal Register’s expected publication of the regulation next week. Continue Reading
In a recent case, Bresler v. Rock, 2018-Ohio-5138, an employee incongruously argued that an employer’s offer to reinstate his employment in exchange for dismissal of his pending lawsuit was a retaliatory action. The Ohio Court of Appeals soundly rejected that contention. Rather, employers can continue to negotiate settlements of discrimination allegations and include conditions of dismissal of lawsuits and releases of all claims and courts should not consider it a retaliatory action.
At the age of 60, after working for Anchor Hocking for over 41 years, Darrell Bresler was terminated. Earlier in the year, the company shut down its operations due to financial distress and most of its employees were furloughed. Four employees, including Bresler, were not recalled to work. Bresler’s plant manager contacted him and informed him that his employment was being terminated. He was offered a four-week severance package in exchange for a release of claims. Continue Reading
The Fair Credit Reporting Act (FCRA) requires employers who obtain a consumer report on a job applicant to provide the applicant with a “clear and conspicuous disclosure” that they may obtain such a report (the “clear and conspicuous” requirement) “in a document that consists solely of the disclosure” (the “standalone document” requirement) before procuring the report. Because neither of these requirements are defined in the statute, they have been the subject of almost constant litigation in recent years. Most notably, the 9th Circuit has led the way in finding that an employer’s inclusion of a liability waiver in its disclosure form violates the standalone requirement. Now, in Gilberg v. California Check Cashing Stores, LLC, a panel of the 9th Circuit Court of Appeals has held that an employer’s inclusion of state law mandated requirements in the disclosure form provided to job applicants violates the standalone document requirement despite the fact that they were included in the form in an effort to assist the applicants in understanding all of their rights as it related to the background screen being obtained on them. In short, the panel was not moved by the employer’s argument that its additional disclosure of the applicable state laws “furthers rather than undermines FCRA’s purpose.” To the contrary, the panel held that “the presence of this extraneous information is as likely to confuse as it is to inform” and therefore, it does not further FCRA’s purpose. Instead, the panel noted that the only exception to the standalone document requirement is the one in the statute itself that permits the disclosure and authorization to be combined into a single document.
On Jan. 25, 2019, the National Labor Relations Board (NLRB) addressed its independent contractor test in a case involving airport shuttle drivers for the franchise, SuperShuttle. The SuperShuttle DFW, Inc. decision overruled the NLRB’s 2014 decision in FedEx Home Delivery, which the Board criticized as incorrectly limiting the significance of a worker’s entrepreneurial opportunity for economic gain in determining independent contractor status. Continue Reading
After years of expanding Section 7 rights during the Obama administration, the NLRB earlier this month began reining in the protection afforded to employee complaints in a 3-1 decision in Alstate Maintenance, LLC. In Alstate, a Kennedy International Airport skycap, Trevor Greenidge, refused to assist an arriving soccer team with their baggage and equipment, telling his supervisor, “We did a similar job a year prior and we didn’t receive a tip for it.” When a van carrying the team’s equipment arrived, airline managers motioned for the charging party and three co-workers to assist. Instead, they walked away and did not return until after baggage handlers from inside the airport terminal had done the bulk of the work. That evening, one of the airline managers called Alstate to complain about subpar customer service, which ultimately resulted in the termination of Greenidge and his three coworkers. Continue Reading
In many employment cases, the parties engage in a battle over content in the plaintiff’s private social media accounts. The recent decision from the U.S. District Court in Eastern District of Michigan in Robinson v. MGM Grand Detroit, LLC, Case No. 17-CV-13128 (E.D. Mich. 1/17/2019) illustrates well how an employer can demonstrate its right to this discovery. In Robinson, the plaintiff, a valet attendant for the defendant employer, filed a complaint alleging race and disability discrimination under Title VII, the Americans with Disabilities Act, and in retaliation for taking medical leave under the Family and Medical Leave Act (FMLA). During the course of discovery, the employer sought and thereafter filed a motion to compel discovery from, among other sources, the plaintiff’s private social media accounts. Specifically, the employer sought discovery from the plaintiff’s Facebook account as well as Google Photo and Google location data for the limited time period that the plaintiff alleged he needed FMLA leave and was unable to work. Also, in its motion to compel, the employer relied on gym records that suggested that the plaintiff had been working out while on FMLA leave. Under the circumstances, the court granted the motion to compel discovery because the employer had demonstrated that the limited social media posts to be produced were relevant and proportional to the needs of the case to the extent that they related to the plaintiff’s activities while out of work. The court agreed with an earlier magistrate decision that the requests were relevant to:
- The plaintiff’s alleged disability, his FMLA time, and after-acquired evidence of his potential FMLA abuse
- His claim for emotional damages
- His efforts to mitigate his wage loss
In reaching its conclusion, the court distinguished the employer’s tailored approach in Robinson from an earlier personal injury lawsuit before it in which the defendant sought discovery of the plaintiff’s entire Facebook page without first making a threshold showing that the plaintiff was exaggerating her injuries.
Too often, employers are disappointed to learn that a lawsuit filed by against them by current or former employees does not give them license to explore the plaintiffs’ private social media accounts in discovery. The Robinson decision demonstrates that in order to obtain this evidence, they will have to show first from evidence already obtained that the social media accounts from which they are seeking discovery are likely to yield evidence that directly relates to some specific aspect of the plaintiffs’ case or their own defenses. Of course, sometimes the plaintiff has left his or her social media evidence publicly available, making it discoverable with as little as a simple Google search.
Nationwide, many states are amending their employment laws to address the uncertainty of the joint employment doctrine under federal law, as evidenced by the apparent conflict between the recent D.C. Circuit decision in Browning-Ferris Industries of California Inc. v. National Labor Relations Board and the Board’s proposed rules on the subject. In an effort to address this uncertainty, Gov. Kasich, before leaving office in December, signed H.B. 494 into law. Effective March 20, 2019, H.B. 494 amends the definition of “employer” in several Ohio employment statutes to provide that franchisors are not the employers of their franchisees or the employees of their franchisees unless:
- they have agreed to assume that role in writing, or
- a court of competent jurisdiction determines that the franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademark, brand or both.
The specific laws amended were the Ohio Minimum Fair Wage Standards Act, the Bimonthly Pay statute, the Ohio Workers’ Compensation Act and the Ohio Unemployment Compensation Act.
While the outcome of the federal joint employer doctrine controversy undoubtedly will go a long way towards determining the long term significance of the Ohio statutory amendments related to minimum wage and overtime under the Ohio Minimum Fair Wage Standards Law, the amendments may have continued vitality as it relates to the bimonthly pay, workers’ compensation and unemployment compensation laws, which do not have comparable federal counterparts. These amendments also only relate to the franchising industry and do not impact any of the numerous other scenarios in which joint employer issues may arise.
In 2016 we reported on OSHA’s anti-retaliation rule related to the reporting of illnesses and injuries. The rule prohibited employer retaliation against employees reporting workplace injuries and illnesses, and implementation of policies that discourage accurate reporting. At the time the rule was finalized, OSHA clearly indicated it would be interpreted strictly and would affect employer incentive programs and post-accident drug testing policies.
On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. OSHA states that it “does not prohibit workplace safety incentive programs or post-incident drug testing.” Continue Reading
The federal Tax Cuts and Jobs Act of 2017 contains an often-overlooked tax credit for employers that provide qualifying types of paid leave to their full- and part-time employees. The credit is available to any employer, regardless of size, if:
- The employer provides at least 2 weeks of paid family and medical leave annually for employees who have been with the company for at least 12 months
- The paid leave is at least 50 percent of the wages normally paid to the employee
The IRS has issued a set of frequently asked questions and a notice to help employers understand the tax credit, which is only available for wages paid in 2018 and 2019. The notice, entitled Notice 2018-71, is effective as of Sept. 24, 2018, and similarly only applies to wages paid in 2018 and 2019. Here are some of its highlights: Continue Reading