As we have seen the last two years, there are changes to the U.S. immigration system almost daily. Whether it be a new proposed regulation, case, executive order, blocking of court order, policy, or tweet, immigration has been a moving target. Some policies are proposed, suspended, and some are passed and now in place. Now more than ever it is imperative to keep up to date with the never-ending changes the immigration system is experiencing as increased scrutiny continues.
Social Security “No-Match” Letters
Social Security No-Match Letters are back again. In 1993, The Social Security Administration (SSA) began issuing notices called “Request for Employer Information” soon to be known as “No-Match Letters.” The purpose of the letters was to ensure the accuracy of earning records that are used to determine social security benefits. In 2012, the Obama Administration decided to stop issuing the letters. The No-Match Letters returned in 2019 advising employers that certain employee names and Social Security numbers on a named employee’s W-2 do not match Social Security records. The new notices now impose an affirmative duty to employers to respond to the SSA within 60 days of receipt of the notice. (See sample No-Match Letter at https://www.ssa.gov/employer/notices/EDCOR.pdf.) It is important to note that the letter is not, by itself, proof that the employee lacks employment authorization. However, total disregard of the letter combined with other evidence might establish that the employer had “constructive knowledge” that an employee does not have employment authorization. The notice imposes on employers a duty to resolve the question of whether an employee is authorized to work in the U.S. Therefore, employers must notify employees and request that they correct the discrepancy of information and provide evidence it is corrected or resolve the issue with the SSA. No specific penalties have been established on employers from failure to respond to the SSA. In fiscal year 2018, Homeland Security Investigations (HSI) opened 6,848 worksite investigations compared to 1,691 in FY17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively. All of these categories surged by 300 to 750 percent over the previous fiscal year. Given the rise in compliance audits and investigations by the SSA, HSI, and ICE, it is essential to establish consistent policies of maintaining records and responding to No-Match Letters.
Last month, USCIS announced that until further notice, employers should continue using the Form I-9 with edition date July 17, 2017, even after the expiration date of August 31, 2019, has passed. We will provide further information regarding the new Form I-9 as it is provided.
USCIS Announces Increase in Fee for H-1B Cap Petitions
In January 2019, Department of Homeland Security (DHS) amended its H-1B regulations, which now requires petitioners (employers) filing H-1B cap-subject petitions to first electronically register with USCIS during a designated registration period, whenever that may be. Only those petitioners whose registrations are selected will be eligible to file an actual H-1B cap-subject petition. Although the rule took effect on April 1, 2019, USCIS suspended the electronic registration requirement for the FY2020 H-1B cap filing season. On September 4, 2019, USCIS proposed a rule that would require petitioners filing H-1B cap-subject petitions to pay a $10.00 fee for each electronic registration they submit to USCIS. Please note that USCIS has not yet announced whether it anticipates utilizing the H-1B registration for the upcoming FY2021 H-1B cap filing season which begins on April 1, 2020, even though it has announced the fee increase.
Form I-539 No Longer Eligible for Premium Processing
In March 2019, USCIS revised Form I-539, Application to Extend/Change Nonimmigrant Status, and published new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status. The Form I-539 is used for certain nonimmigrants whom request to extend their stay or change to another nonimmigrant status. The most notable change of the revised Form I-539 is the requirement that every applicant pay an $85.00 biometrics fee and attend a biometrics appointment, regardless of age. Applicants usually receive a biometrics appointment within a few weeks after filing Form I-539. Thereafter, it takes at least another three weeks for biometrics to be completed. Due to this new biometrics requirement, Form I-539 applications are now separated from the primary applicant’s Form I-129 petition and processed on their own. Consequently, USCIS can no longer continue premium processing Form I-539 applications filed concurrently with Form I-129 petitions, such as an H-1B petition. As a result, H-4 spouses and children are now having to wait substantially longer to have their Form I-539 applications adjudicated and approved.
Changes to Immigrant and Nonimmigrant Visa Application Forms
Forms DS-160/DS-156, Nonimmigrant Visa Application are used for nonimmigrant, temporary travel to the United States and for K (fiancé(e)) visas. Form DS-260, Immigrant Visa Application is used for immigrant visa applicants. These forms are filed electronically to the Department of State. On May 31, 2019, new questions were added to the Forms DS-160/DS-156 and Form DS-260. These additional questions require applicants to disclose five years of social media and contact history when applying for a nonimmigrant or immigrant visa. Specifically, applicants are now required to disclose the social media platforms they have used within the previous five years, as well as provide their username for each platform. Please note that passwords for these accounts are not required and should not be provided. In addition, the applications request the applicant’s email addresses and phone numbers used in the past five years. Despite concerns raised by stakeholders, the Forms DS-160/156 and DS-260 have been updated to solicit this information. On September 4, 2019, DHS proposed changes to several immigration and travel forms to also collect social media information from applicants. The forms that would be affected by the new social media questions include USCIS Forms N–400, I–131, I–192, I–485, I–589, and I–751; CBP’s ESTA; and others.
Supreme Court Agreed to Review Three Cases Challenging the End of DACA
On June 28, 2019, the Supreme Court agreed to review three cases challenging the Trump Administration’s decision to end Deferred Action for Childhood Arrivals (DACA or “Dreamers”). In total, four federal appeals courts have heard arguments on whether President Trump went through the proper procedure to end DACA. Both the Ninth Circuit and the Fourth Circuit held that Trump’s decision to end DACA was improper. Decisions are still pending in the Second Circuit and D.C. Circuit. The Supreme Court is expected to issue its decision by June 2020. This means that current DACA recipients can continue to submit their renewal applications until that decision. DACA recipients will continue to receive protection from deportation and work permits, unless and until the Supreme Court issues a decision otherwise.
What are the Numbers for H-1B Petition Denials?
The National Foundation for American Policy analyzed the report from the H-1B Employer Data Hub and found that, “Between FY 2015 and FY 2018 the denial rate for new H-1B petitions quadrupled from 6% to 24%. To put this in perspective, between FY 2010 and FY 2015, the denial rate for initial H-1B petitions never exceeded 8%, while today the rate is 3 to 4 times higher.” Denial rates for initial H-1B petitions nearly doubled from 13% in FY 2017 to 24% in FY 2018 and climbed to 32% in the first quarter of 2019 due to Trump’s “Buy American, Hire American” Executive Order. H-1B extensions and transfers also had comparable denial increases. Petitions filed for the same workers with the same jobs that were previously approved, are now being denied. In FY 2017 the denial rate for these petitions was 5%. The rate more than doubled in FY 2018 to 13%.
Denial Rate: H-1B Petitions for Initial (New) Employment
|FISCAL YEAR||DENIAL RATE|
Source: USCIS, National Foundation for American Policy. *FY 2019 data through the second quarter of FY 2019. Percentages are rounded off. Data extracted and analyzed from USCIS H-1B Employer Data Hub.
Denial Rate: H-1B Extension Petitions for Continuing Employment
|FISCAL YEAR||DENIAL RATE|
Source: USCIS, National Foundation for American Policy. *FY 2019 data through the first two quarters of FY 2019. Percentages are rounded off. Data extracted and analyzed from USCIS H-1B Employer Data Hub.
* “Changes” by David Bowie (1971)
This summer, New York joined the small group of U.S. states that offers paid family leave to employees. New York’s Workers’ Compensation Board adopted final regulations implementing paid family leave, the Paid Family Leave Benefits Law (“NY PFL law”), which goes into effect on January 1, 2018. The New York law has been dubbed one of the most comprehensive paid family leave programs in the nation. The NY PFL applies to all employers with employees working in New York for 30 or more days in a calendar year. The New York law is a benefit for people who work in New York; it does not matter where the employer is headquartered or where the employee lives.
The new law covers both full-time employees that have worked at least 20 hours per week for at least 26 consecutive weeks and part-time employees that have worked at least 175 days within a 52 consecutive-week period. Once an employee has met one of the two aforementioned eligibility requirements, paid leave will be granted in the following situations:
• To provide physical or psychological care and support to a family member due to a family member’s serious health condition;
• To bond with a newborn child during the first year of the child’s life or, if an adopted or foster care child, for the first year after the placement of a child with the employee; or
• For any qualified reason as provided for under the federal Family and Medical Leave Act (“FMLA”) arising from the employee’s spouse, domestic partner, child, or parent being active military duty, or being notified of an impending call or order to active military duty.
Employees on leave will receive up to 50% of the state’s average weekly wage for up to eight weeks in 2018 and this amount will gradually increase during the coming years, reaching 67% of the state average weekly wage for up to twelve weeks by 2021. The program is mandatory for private employers with one or more employees while public employers may opt into the program.
New York’s law is significantly more generous than the FMLA, which does not require paid leave and only applies to employers with 50 or more employees within a 750-mile radius of the worksite at which the employee is employed. Another key difference is that while FMLA requires employees to first use accrued Paid Time Off (“PTO”), an employer under the NY PFL law cannot require employees to use PTO before paid family leave unless that employee is eligible for both FMLA and NY paid family leave. Other benefits under the NY PFL law include continued health benefits during leave as if the employee continued to work, and reinstatement to the same or comparable prior position of employment without reduction in accrued benefits.
The NY PFL law does contain some restrictions on when employees can utilize paid family leave. For example, employees who are eligible for disability benefits and paid family leave benefits may only receive a combined amount of 26 weeks of disability and paid family leave benefits in a 52-consecutive calendar week period, and may not collect benefits for short term disability and paid family leave concurrently. The regulations also list various situations in which paid family leave benefits may not be available to the employee, such as when the employee is collecting sick pay or PTO from the employer, receiving total disability payments pursuant to workers’ compensation, or working part of the day with pay for the employer or any other employer.
Funding for paid family leave will come from employee contributions of up to $1.65/week for 2018. While it is unclear whether the short-term disability insurance carriers required to provide paid family leave benefits will be able to charge an amount in excess of the employee contributions, the intent behind the law is to ensure that the employee contributions are sufficient to fund all paid family leave costs. Employers who either currently self-insure for short-term disability benefits or who provide paid family leave to public employees not represented by employee organizations are given the option to self-insure for paid family leave, but must do so before September 30, 2017. However, self-insurance comes with a risk of bearing paid family leave costs not covered by employee contributions.
In addition to the heightened benefits, the NY PFL law adds notice requirements that may not be ignored. Employers must provide written notice to employees regarding their rights under the NY PFL law, including how to file a claim for leave. Employers must also post a prescribed notice regarding the NY PFL. Employees are also subject to notice requirements, as the law mandates 30 days’ advance notice of intent to take paid family leave.
Looking forward, employers should determine whether to obtain separate coverage for these benefits. Employers that insure short-term disability benefits should contact their insurance carriers to determine when payroll deductions for paid family leave should go into effect. Private employers that self-insure short term disability must determine whether they will elect to self-insure paid family leave, and must do so no later than September 30, 2017. The NY PFL law is much broader than FMLA, meaning that more employees can take leave than before and various leave policies will overlap in a new and complicated manner. Employers should review and update their employee handbooks, notices, plan documents, summary plan descriptions, and leave forms to ensure compliance with the new law.
Today the Department of Labor (DOL) announced a long-awaited proposed rule to extend overtime protections to employees. The primary purpose of the new rule is to update the salary and compensation levels needed for white collar workers to be exempt. Currently the salary threshold is $455 a week, which is the equivalent of $23,660 a year. As proposed, the rule would raise the salary threshold in 2016 to about $970 a week, which is the equivalent of $50,440 a year. Obviously, if and when the rule goes into effect, all employees who presently are exempt would lose that exemption and would be entitled to overtime pay if their salary does not meet the new minimum amount.
The rule also proposes to raise the salary requirement needed to exempt highly compensated employees from $100,000 to $122,148 in total annual compensation.
The DOL is additionally proposing to automatically update the standard salary and compensation levels annually to “ensure that they maintain their effectiveness going forward, either by maintaining the levels at a fixed percentile of earnings or by updating the amounts based on changes in the CPI-U [consumer price index].” The current proposal raises the standard salary level to the 40th percentile of weekly earnings for full-time salaried workers and raises the highly compensated employees salary level to the 90th percentile.
In the proposed rule, the DOL also discusses the current duties test for exempt employees. In order for an employee to qualify as exempt, the employee must (1) be paid on a salary basis; (2) be paid at least a fixed minimum salary per week as provided in the regulations; and, (3) meet certain requirements as to their job duties. The DOL is not proposing specific regulatory changes at this time, but rather is seeking additional information on the duties tests for consideration in the Final Rule, including responses to the following questions:
- What, if any, changes should be made to the duties tests?
- Should employees be required to spend a minimum amount of time performing work that is their primary duty in order to qualify for exemption? If so, what should that minimum amount be?
- Should the Department look to the State of California’s law (requiring that 50 percent of an employee’s time be spent exclusively on work that is the employee’s primary duty) as a model? Is some other threshold that is less than 50 percent of an employee’s time worked a better indicator of the realities of the workplace today?
- Does the single standard duties test for each exemption category appropriately distinguish between exempt and nonexempt employees? Should the Department reconsider its decision to eliminate the long/short duties tests structure?
- Is the concurrent duties regulation for executive employees (allowing the performance of both exempt and nonexempt duties concurrently) working appropriately or does it need to be modified to avoid sweeping nonexempt employees into the exemption? Alternatively, should there be a limitation on the amount of nonexempt work? To what extent are exempt lower-level executive employees performing nonexempt work?
Additionally, although none are specifically proposed at this time, the DOL is also considering whether to add to the regulations examples of additional occupations to provide guidance in administering the executive, administrative, and professional exemptions, along with additional examples of the application of these exemptions to occupational categories in computer-related fields. The comment period for the proposed rule will be open for 60 days. We will keep readers advised as more information becomes available.
The timing of FMLA leave is not always convenient for employers. But, what can a company do when an employee who is important or even essential to a business function goes on FMLA leave before the work has been completed? Although a recent court decision did not directly answer this question, it did frame the issue of how much work-related contact with an employee on FMLA leave constitutes interference with that leave.
The plaintiff in Smith-Schrenk v. Glennon Energy Services worked in the company’s ethics and compliance department. In that department, she was required to work 50 to 60 hours a week. About two years after she began her employment, the plaintiff began missing work in order to care for her mother and because of her own health needs. She first requested intermittent FMLA leave and then asked that the leave be made full-time, or continuous. Sometime later, the plaintiff resigned her employment, but alleged that she had been constructively discharged because of certain actions taken by the company which she claim were designed to lead to her termination. The plaintiff also alleged interference with her FMLA leave and claimed that the company continued to call and email her during her leave, requiring her to work 20 to 40 hours while she was on leave.
The court reviewed the company’s motion for summary judgment and dismissed all the causes except the interference claim related to the plaintiff’s allegations relating to the work she alleged she was forced to perform while on leave. In examining that claim, the court noted that the FMLA makes it unlawful for any employer to interfere with, restrain or deny the exercise of or attempt to exercise, any right provided under the FMLA. The term “interfering with” was found to include not only refusing to authorize FMLA leave, but “discouraging an employee from using such leave.”
The court noted that the general consensus among the courts is that reasonable contact limited to basic, business-related inquiries about the location of files as well as institutional or status-related knowledge will not interfere with an employee’s FMLA rights. Significantly, the court noted that there is no right in the FMLA to be “left alone” or to be completely relieved from responding to an employer’s “discrete inquiries.” Further, it found that fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights.
On the other hand, asking or requiring an employee to work while on leave can cross the line into interference. The court noted that by requesting an employee to perform work during FMLA leave, the employer not only discourages the employee from using such leave, but actually precludes the employee from using such leave during that period of time.
The court then concluded that since there was a dispute about whether the plaintiff was actually required to perform work during her leave and, if so, how much work she was required to perform, the matter should go to a jury.
Even though the issue was not specifically decided, the decision in Smith-Schrenk is instructive to employers. In today’s workplace, there are many jobs that an employee cannot simply walk away from, simply given the nature of the job responsibilities or its importance to the company’s function. Inevitably, there will need to be some contact with individuals on FMLA leave in order to gain information or learn about the status of a matter, or even to bring a task or project to closure, even though the employee legitimately is on leave. However, where the contact with the employee involves a request for work beyond the responses to “discrete inquiries” referenced by the court in its initial analysis, employers should tread carefully. Even if the employee agrees to or acquiesces in such work, that may not be enough to justify the employer’s actions and avoid a claim of FMLA interference. Employees may be able to claim that they felt they had no choice and that a refusal to perform could have impacted their job status. Clearly, with respect to job-related contacts with an employee when they are on FMLA leave, “less is more.”
Under the provisions of the Americans with Disabilities Act, an employee who wishes to seek an accommodation of the restrictions imposed by their disability must bring their disability to the attention of the employer, if it is non-obvious. The Eighth Circuit Court of Appeals, in Walz v. Ameriprise Financial, Inc., upheld the dismissal of a lawsuit because the plaintiff had not informed her employer of either her disability or that an accommodation was necessary to perform the essential functions of her job.
The plaintiff’s job required people, teamwork, communication and time management skills. It also required that she be “good at relationships.” However, she suffered from bipolar affective disorder, which apparently caused her to interrupt meetings, disturb co-workers and disrespect her supervisor. After several incidents, her supervisor issued a formal behavioral warning. The plaintiff then applied for FMLA leave, which was granted by the company’s third-party administrator. Upon her return to work, plaintiff gave her supervisor a note from a doctor at a mental health service which cleared her to return to work for 40 hours a week and stated that she had been stabilized on her medication. However, her erratic and disruptive behavior returned. She was terminated because of her repeated misconduct.
Plaintiff did not ever inform her employer of the nature of her disorder. Nor did she request any accommodation.
To establish her claim of disability discrimination, the Court noted that she must establish that she was a “qualified disabled person” within the meaning of the ADA. The first prong of the test to determine whether she was qualified is whether she possessed the requisite skills, education, certification and experience. She did. The second part of the test was whether the plaintiff could, despite her impairments, perform the essential functions of the job either with or without reasonable accommodation. Upon a review of the record, the Court concluded that plaintiff could not make a sufficient showing that she was able to perform the essential functions of the position without an accommodation.
However, it noted that she also may be qualified under the ADA if a reasonable accommodation would have allowed her to perform the essential functions of her position. However, plaintiff had failed to inform her employer of her disability or even request an accommodation. Thus, it was concluded that the employer had no duty to accommodate her. The plaintiff then argued that the note from a doctor with the mental health service which contained a reference to medication stabilizing her condition was sufficient to put the employer on notice of plaintiff’s disorder. While her supervisor did acknowledge that he “guessed” that plaintiff had been treated for a mental health issue, those facts, even if they established the plaintiff suffered from bipolar disorder, did not specifically identify any resulting limitations. Because plaintiff failed to disclose her non-obvious disability and related limitations, she did not sufficiently establish that she could perform the essential functions of her job with reasonable accommodation.
The takeaway from the Walz decision is that while there may be certain behaviors and conditions which would put an employer on notice of the existence of an employee’s disability, where the disability is a psychological one, an employee’s erratic behavior, by itself, may not impose a duty upon the employer to consider accommodation. Other decisions involving the ADA have concluded that an employer need not be a “mind reader” and, without appropriate notification by an employee, it need not leap to the conclusion that the employee needs an accommodation and then pursue the interactive process to determination whether an accommodation was available.
Every employee handbook should have a policy preventing discrimination and harassment in the workplace. These policies generally cover several protected groups including individuals with disabilities under the Americans with Disabilities Act (ADA). However, employers need to take their handbook one step further and create a policy that addresses accommodations in the workplace for disabled applicants and employees.
During our recent Master Series in April, we highlighted several policies that should be contained in every handbook including an ADA accommodations policy. Here are the terms you should have in your accommodations policy:
- The policy should be directed toward “qualified individuals with disabilities.” Under the ADA, a qualified individual with a disability is a person that meets the legitimate skill, experience, education or other requirements of the employment position and can perform the “essential functions” of the job with or without reasonable accommodation.
- The policy should confirm that the employer will provide reasonable accommodations to disabled applicants or employees if the accommodation would allow the individual to perform the essential functions of his or her job, unless doing so would create an undue hardship.
- The policy should advise the employee that he or she is responsible for requesting a reasonable accommodation. Employers are only required to make reasonable accommodations for known physical and mental impairments. An employee does not need to use the magic words “reasonable accommodation,” but must disclose that: (1) he or she has a disability that creates work-related limitations; and (2) an accommodation is needed in order to do the job.
- The policy should identify the specific individual or position to contact regarding accommodations. At a minimum, the specific job title should be referenced in the policy (e.g., Human Resources Manager or Safety Director).
- The procedures for requesting an accommodation should be clearly stated in the policy including the requirement that requests be submitted in writing. It is strongly recommended that the policy direct the employee to submit the following information in writing: (1) the reason the employee believes he or she needs an accommodation including a statement of the limitations and restrictions imposed by the disability; (2) the job duties or assignments the employee is having difficulty performing; (3) a description of the accommodations requested by the employee; and (4) a statement as to how accommodations will help the individual perform his or her essential functions. All of this information will be fully discussed during the interactive process.
- The policy should confirm that the employer has the right to request medical information concerning the employee’s disability and need for an accommodation. Any medical information received as a result of a request for a reasonable accommodation should be kept confidential and maintained in a separate file.
Once a request for an accommodation is received pursuant to the employer’s policy, the interactive process must be initiated with the employee to fully explore accommodations in the workplace. When questions surface regarding requests for accommodations or an employer’s legal obligations, it is recommended that employment counsel should be contacted at the outset to provide guidance regarding the process.
Many disciplinary actions involve a determination by the company as to who is telling the truth. As illustrated by a recent court decision, a review of an employer’s credibility resolution may turn on how thorough the investigation of the differing versions of events actually was.
In Estate of Carlos Bassatt v. School District No. 1 it was alleged that the plaintiff, an Hispanic student teacher, had engaged in an inappropriate act in the school’s parking lot. One of the school’s teachers stated that she had observed the act, while the plaintiff denied it. His employment was terminated. He subsequently filed discrimination and retaliation charges and then a lawsuit in federal court. The school district (‘District”) moved to dismiss the case. The court reviewed the employer’s nondiscriminatory reason for the termination and examined the plaintiff’s allegations that the District’s credibility resolutions between the plaintiff and the teacher who allegedly observed the acts in question were faulty. The plaintiff focused his attack on the nature of the school district’s investigation. More specifically, he alleged that the District’s investigation was so suspect that the District could not reasonably have believed the teacher’s allegation.
The court noted at the outset that the failure to conduct a fair investigation can raise an inference of pretext. However, it noted that in the cases cited by the plaintiff, the employer had never heard the plaintiff’s side of the story before firing him or not. That that was not the case in this lawsuit. It then examined the next prong of plaintiff’s attack which was that the defendant failed to interview key witnesses. The court dismissed that allegation, finding that the District’s investigation, while conceivably it could have been more thorough, did involve interviews with the key witnesses and that nothing about that investigation suggested deficiencies from which one could infer that the District’s stated reasons were false or “pretext.” The plaintiff’s Complaint was dismissed.
The nature of the court’s inquiry into the credibility resolution provides a good takeaway. The District interviewed the plaintiff about the incident in question and allowed him to fully explain his side of the incident. It also interviewed other witnesses in the matter, including those who had viewed a videotape of the parking lot on the day in question and the teacher who had informed the District of what she observed in the parking lot. It then determined, in light of the breadth of the investigation, that the District’s credibility findings could not successfully be attacked or shown to be pretextual.
The process of conducting a thorough investigation is sometimes referred to as “industrial due process.” Employers faced with situations in which a credibility finding is a necessary part of a determination of whether discipline should be imposed would be well advised to give the accused employee an opportunity to explain his or her position, and should also expand the investigation to include other individuals who have been described as witnesses or who may have witnessed some or all of the conduct in question. The more “fair” the investigation, the more deference a court will give it.
During our Masters Series presentation in April, we addressed the National Labor Relations Board’s (NLRB) General Counsel’s memorandum relating to conduct policies. In the memorandum, the General Counsel contended that certain policies, including what appeared to be standard handbook provisions, violate employees’ rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). Concerted activity generally is two or more employees discussing or taking action with regard to terms and conditions of work or even one employee taking action on a matter involving terms or conditions of employment.
A number of the policies contained in the memorandum and addressed in our presentation likely left several employers scratching their heads. As an example, according to the General Counsel, the following prohibition violates the NLRA:
- Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.
In contrast, according to the General Counsel, this prohibition is lawful:
- Being insubordinate, threatening, intimidating, disrespectful, or assaulting a manager/supervisor, coworker, customer, or vendor will result in discipline.
The difference, according to the General Counsel, is that “[a]lthough a ban on being ‘disrespectful’ to management, by itself, would ordinarily be found to chill Section 7 criticism of the employer, the term [in the second, lawful policy] is contained in a larger provision that is clearly focused on serious misconduct, like insubordination, threats and assault.” The General Counsel came to this conclusion despite the obvious similarities of these rules, including the inclusion of “insubordination,” which employers are undoubtedly allowed to prohibit.
In light of this recent “guidance” from the NLRB, employers should keep the following in mind:
- The lawfulness of the policies in the guidance is the opinion of the General Counsel and has not been tested in the Courts or decided directly by the National Labor Relations Board. Given proper legal analysis, many of the General Counsel’s opinions could and should be rejected.
- Context and placement of policies in the handbook matter. The General Counsel repeatedly indicated in the memorandum that the lawfulness of the examined policies would be decided in context with the material around it. While the wording of a policy may be unlawful standing alone, it could be lawful given the context and surrounding material. For example, a policy prohibiting harassing or disparaging comments may be lawful if it was contained within the handbook’s discrimination and harassment policy.
- If no employee is terminated, the penalty is low for maintaining an unlawful policy. Absent an employee termination as a result of an unlawful rule, if an employer is found to have an unlawful policy in its handbook, the employer will likely only be required to change or delete the policy and post a notice to employees informing them or their rights under the NLRB for 60 days. If an employee is terminated; however, the employer will likely be required to reinstate the employee with backpay.
- While it is remarkable that the General Counsel continues to strike down long-used policies designed to maintain workplace order by claiming that the employees would reasonably believe the policies infringe on their rights to unionize and engage in protected concerted activity, the memorandum is helpful in that it provides examples considered to be lawful by the General Counsel to use in handbooks. In light of the General counsel’s tirade against standard policies, it is important to work with knowledgeable counsel when auditing or creating policies and handbooks.
“[W]hy, when the employer accommodated so many, could it not accommodate pregnant women as well?” This is the question the United States Supreme Court posed to the Fourth Circuit in Young v. United Parcel Service, Inc., as it voted 6-3 to revive a pregnancy discrimination case where a pregnant employee was denied an accommodation. This is the Court’s first ruling since 1991 on employers’ duties toward pregnant workers.
Peggy Young worked as a part-time driver for United Parcel Service, Inc. (“UPS”). Her responsibilities included pickup and delivery of packages. In 2006, Young became pregnant and her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy and not more than 10 pounds thereafter. UPS required drivers like Young to be able to lift packages weighing up to 70 pounds and up to 150 pounds with assistance. UPS had a collective bargaining agreement with a union that provided for reassignments to be available to workers with job-related injuries, those who lost their driver’s certification, and those considered permanently disabled under the Americans with Disabilities Act. Because Young did not fall into any of those categories, UPS did not allow her to work while under her lifting restriction. Young subsequently brought action against UPS claiming she was discriminated under Title VII because UPS refused to accommodate her while giving temporary assignments to other employees.
After the Court agreed to hear this case, the Equal Employment Opportunity Commission (“EEOC”) issued new guidelines which provided that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).” Although urged to give weight to these guidelines, the Court refused because they lacked the timing, consistency, and thoroughness of consideration necessary to “give it power to persuade” because (1) the guidelines were issued after it agreed to hear this case; (2) the position of the guidelines is inconsistent with positions for which the Government has long advocated; and, (3) the EEOC did not explain the basis of its latest guidance.
The Court ultimately adopted a “middle ground” approach and rejected the positions of both parties. Young argued that whenever an employer accommodates only a subset of workers with disabling conditions, it must provide the same accommodation to pregnant workers even if other non-pregnant workers do not receive accommodations, thus providing pregnant workers with “most-favored-nation” status. UPS, on the opposite end of the spectrum, argued that employers should be allowed to have neutral policies like seniority systems and special preferences for workers who are injured on the job and that employers are not prohibited from denying pregnant women accommodations on the basis of an evenhanded policy (e.g., light duty only offered to those with on-the-job injuries, regardless of whether the employee is pregnant or not).
The Court determined that an individual pregnant employee may show a case of discrimination through the application of what is known as the McDonnell Douglas framework. There, the employee must first show that: (1) she is a member of a protected class (here pregnant); (2) she sought an accommodation; (3) her employer did not accommodate her; and, (4) her employer did accommodate others “similar in their ability or inability to work.” Once the employee shows this evidence, the employer may justify its refusal to accommodate the employee by relying on “legitimate, nondiscriminatory” reasons for denying her accommodation. If the employer shows such reasons, the employee may in turn show that the employer’s proffered reasons are in fact pretextual. Importantly, the Court stated that the legitimate, nondiscriminatory reason proffered by the employer “normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.”
The Court sent Young’s case back to the Fourth Circuit Court of Appeals. The Fourth Circuit is now tasked with considering the facts of this case under the Supreme Court’s standard outlined above.
Where do we go from here? It is important to note that after the Supreme Court agreed to hear this case, UPS changed its policy and now treats pregnant employees in need of reasonable accommodations the same as workers with on-the-job injuries, giving them light-duty assignments if available. Employers should review their reasonable accommodation policies with respect to allowing pregnant employees light duty assignments in light of the Court’s decision. It can also be anticipated that the EEOC will revisit its guidelines and try to reassert the very same position which was rejected here, but do it the right way.
A recent federal court decision examined the potential exempt status of entry-level audit associates working for KPMG. In that case, the U.S. Court of Appeals for the Second Circuit found that those employees were exempt under the “professional exemption” even though they performed many routine tasks. Would that decision be the same for all professionals with certain degrees? The answer to that question will depend upon the particular facts of the case.
The Fair Labor Standards Act (FLSA) requires that most employees be paid overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. However, the FLSA does recognize certain exemptions from this requirement, including the “professional exemption.” To qualify for that exemption, the employee must (1) be compensated on a salary or fee basis at a rate of at least $455 per week; (2) have the primary duty where the performance of work requires advanced knowledge, which includes work requiring the consistent exercise of discretion and judgment; (3) the advanced knowledge must be in a field of science or learning; and (4) the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. This exemption is not restricted to the traditional professions of law, medicine, and teaching, but includes professions that have a recognized status and are based on the acquirement of professional knowledge through prolonged study. Generally speaking, these include professions such as nursing, accountancy, engineering, architecture, etc.
In the KPMG case mentioned above, the court relied heavily on the degrees required for the position and found that an entry-level member of a profession is still a professional and may fall under the exemption. The Court found it “hardly surprising” that the audit associates did not make high-level decisions for KPMG’s business, but noted that the professional exemption does not require that the professional reach conclusions that guide or alter the course of business. The critical question, according to the Court, was whether the workers act in a manner that reflects knowledge and requires judgments characteristic of a worker practicing that particular profession.
A reading of this case indicates that the answer to the question asked in the title of this article is “no.” A degree alone will not make an employee exempt under the professional exemption under wage and hour law. As acknowledged in the KPMG case, the critical question for the professional exemption is whether the employee’s particular position requires duties that are appropriately considered professional for that particular profession, entry-level or otherwise.
If you have a question regarding whether an employee falls into an exemption, it is important to look at the facts of your particular situation and get legal counsel involved if necessary. Remember that even though an employee may not fall under the professional exemption, they may fall under another exemption, such as the executive, administrative, or computer employee exemption.