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Interviewing Applicants: How To Avoid The Pitfalls


Interview PitfallsEmployee interviews can provide a valuable means for employers to learn about a prospective employee, but the process can also be fraught with legal minefields. For example, consider a lawsuit that was filed in federal court against Wal-Mart Stores. In that case, the interviewer asked the applicant “What current or past medical problems might limit your ability to do the job?” Although not apparent to the interviewer at that time, the applicant’s right arm below his elbow had been amputated and he had been fitted with a cosmetic prosthetic device. The applicant was not offered the job and he filed suit under the Americans with Disabilities Act. The jury awarded the Plaintiff $157,500 because the Wal-Mart interviewer asked an illegal question. This award included $100,000 in punitive damages for the unlawful inquiry, $50,000 in punitive damages for discriminatory failure to hire, and $7,500 in compensatory damages.

Most employers already know that questions concerning an interviewee’s race, color, creed, religion, national origin, ancestry, sex, union membership, sexual orientation, marital status, disability or age are unlawful and off limits during the interview process. The exception to this rule is where the attribute is central to the job. For example, you may ask a candidate about their religion if you are a religious organization and the job requires the teaching of the principles of your particular religion.

While avoiding unlawful subjects seems easy enough, it’s not always obvious what questions might be construed as inappropriate or elicit information relating to an applicant’s protected status that may subject an employer to liability. For example, the following questions or similar questions (or observations), while seemingly benign, are improper and tend to elicit information that the interviewer is not entitled to:

  • What year did you graduate from high school? (This is an improper request for age-related information. If necessary, you may confirm that the individual is over 18, but the age-related inquiries must end there.);
  • Are you a U.S. citizen? (Questions relating to citizenship are prohibited unless the position specifically requires one to be a U.S. citizen and the job posting states as such.);
  • Do you have children? Can you get a babysitter on short notice for overtime or travel? (Stay away from questions targeting family or marital status-related information and may be construed as gender discrimination.);
  • Have you ever been arrested? (Questions about arrests and convictions that are NOT substantially related to the particular job are off-limits.);
  • Is this your maiden name? (This sort of request is improper as it seeks marital status information.);
  • How much longer do you plan to work before you retire? (Again, this request would tend to elicit age-related information and could communicate a preference for younger workers.);
  • Do you have any impairments that may affect your performance in the position? (This is an improper request for disability-related information.)

With respect to individuals with disabilities or medical conditions, an employer should not ask questions relating to the employee’s medical status until after a conditional job offer is made. (Note the article by Steve Bogue in this issue regarding what constitutes a “real” job offer under the ADA.) An employment offer to an individual with a medical condition, for example, can be withdrawn if it becomes clear that the individual cannot perform the essential functions of the job, with or without an accommodation, or the individual would pose a direct threat (a significant risk of substantial harm to themselves or others in the workplace).

In order to avoid potential pitfalls that can expose a company to liability, employers should also take a strategic and preventative approach to minimize the risk posed by the recruitment process and hiring decisions, including:

  1. Adopt an Equal Employment Opportunity/Harassment Policy.
  2. Reserve the right to evaluate and confirm all information supplied by the applicant and condition employment upon truthful information supplied by the applicant.
  3. Provide applicants with notice of their at-will employment status and the Company’s policies regarding working hours, overtime, drugs and alcohol, unlawful solicitation and other essential policies.
  4. Establish written job descriptions setting forth the qualifications for all positions including the physical requirements for the job.
  5. Only ask standardized, job-related questions. Stay away from topics that are not relevant to the job or the candidate’s qualifications.
  6. Ensure that interviewers are consistent in their questioning of candidates. Train your interviewers as to what questions may lawfully be asked during the hiring process and how to redirect the conversation when an applicant volunteers “off limits” information.
  7. Finally, have an experienced labor/employment lawyer review your hiring materials and employment policies.

Our Firm’s employment lawyers can “audit” your Company’s hiring practices and procedures to insure they are in compliance with the law and legitimate inquiries are made to choose the best candidate for the position.

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Top Ten Things To Cover When Documenting Performance And Discipline


performance evaluationWhen employment claims and lawsuits are filed against employers, corrective actions and discipline records become key pieces of evidence. It goes without saying that a supervisor will have a difficult time convincing a jury that an employee deserved to be terminated if the underlying conduct is not properly documented. Judges and juries generally distrust employers who fire their employees without warning or without written proof that the employee was treated fairly under the circumstances.

Performance and discipline documentation should notify and educate the employee regarding the employer’s expectations. When drafting these documents, supervisors and HR managers need to consider a secondary audience. This audience consists of lawyers, judges, juries and administrative agencies who may later be called upon to evaluate the fairness of the employer’s actions.

Adopting good documentation practices will not necessarily prevent a lawsuit from being filed; however, it will put the employer in the best possible position to defend the claim. Here are the top 10 things that a supervisor or HR manager should try to document when addressing job performance and discipline issues in the workplace.

    1. Identify the standard or rule violated and state why the rule exists and how it was communicated to the employee. For example, a discipline notice might state “You have failed to wear your personal protective equipment which is designed to protect you from serious injury. You have been instructed multiple times regarding this requirement which is spelled out in the Company’s safety policy and reviewed during safety training.”
    2. If applicable, explain how the employee’s conduct negatively impacts the employer. Suppose an employee fails to timely contact the employer to report an absence, the discipline notice might advise that “your failure to properly notify the Company regarding your absences places a burden on your supervisor and your fellow coworkers who are required to cover your work.”
    3. Describe the facts and events supporting the violation of Company policy. You should summarize the relevant facts including any findings from your investigation regarding the employee’s conduct.
    4. Identify any previous counseling or discipline given. In the notice, you should specifically identify the date and nature of any prior counseling or discipline issued to the employee. You can also attach this documentation as part of the write-up.
    5. Document the employee’s response to the issue. If the employee acknowledges that he or she violated Company policy, you should record this fact in the discipline notice.
    6. State your future expectations and counsel employee on how to correct the problem. For example, if an employee had a verbal confrontation with a coworker, the employee might be instructed to treat coworkers in a professional and courteous manner and contact a supervisor before confronting another coworker.
    7. Clearly state the consequences for additional violations. If the worker commits a serious infraction, the notice may state that “additional violations of this policy will result in your immediate termination from employment.”
    8. If applicable, document any assistance offered or provided by the Company to correct the problem. For example, if the employee committed a safety infraction, the employer may instruct the employee to attend additional safety training to ensure that he or she understands the Company’s expectations.
    9. The notice should be dated and the author identified in the document.
    10. The notice should also be presented and signed by the employee. If the employee refuses to sign, the employer should note the date and time the notice was presented and the fact that the employee refused to sign.

Bottom Line: Performance and discipline documentation should demonstrate that the employee was treated fairly by the Company. An employee should never be surprised when he or she reaches the final step in the discipline process resulting in termination. Every performance record or document should be created with an understanding that it will be discoverable if a lawsuit is filed.

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Job Offer Found To Be “Real” Under the ADA, Even Though Employment was Conditioned Upon More Than Just A Medical Exam


Job offerIn the course of determining whether a plaintiff’s ADA Complaint should be dismissed, a court had the opportunity to examine an innovative technical attack upon a hospital’s rejection of a CNA’s application for a job which required heavy lifting. The plaintiff alleged that since an offer of employment was contingent not just upon a medical exam, but also upon an employment verification and a criminal background check, the job offer was not a “real” offer.

The plaintiff in Taylor v. Renown Health applied for a transfer into a particular medical unit dealing with patients who have heart conditions or who are obese or morbidly obese. Accordingly, the ability to lift considerable amounts of weight was an essential function of the job. Plaintiff was interviewed and received an offer of employment with the contingencies described above. She was directed to set up a medical exam. During the exam, the plaintiff disclosed to the examining doctor that she had limited movement in her left shoulder and the doctor found that she had limited arm strength. The plaintiff later was informed that she would not be hired because her physical limitations would impair her ability to perform the essential functions of the job.

The plaintiff pointed out that a medical examination may only take place when employment is contingent upon that examination. Plaintiff argued that since the job offer she received was contingent not only upon a medical examination, but on non-medical conditions (employment verification and a criminal background check) the employment offer she had received was not “real” and the employer violated the ADA by requiring her to have a physical exam. In support of its position, she cited a court case which found a violation of the ADA where the plaintiffs were given offers of employment contingent upon the completion of both background checks and medical exams. In that case, that court had held that by conducting a medical exam prior to the completion of all non-medical conditions the employer had failed to establish that the job offers were “real.” Thus, the plaintiff in Taylor argued that a job offer involves a two-step process, with the first step being the satisfaction of all non-medical contingencies and examinations, and the second step being the medical exam itself.

The court rejected that technical approach. It stated, in essence, that the ADA included the provision of a job offer prior to a medical exam so that there was only one remaining factor, the medical exam; and, an employer could not claim that its reason for rejecting a particular application was something other than a medical condition. However, the Taylor court found that the employer was not trying to hide the reason for its decision and had made it very clear that plaintiff was not hired because of the results of the medical examination she had undergone. Further, it found that even if there had been a technical violation of the ADA, there was no evidence that the plaintiff suffered any harm because the outcome of Taylor’s medical examination would have been the same regardless of whether the examination took place after the completion of all the non-medical components of the hiring process.

Even though the court in the Taylor matter rejected the technical challenge under the ADA and dismissed the lawsuit, employers would be well advised to make sure that all the non-medical conditions have been satisfied before requiring a medical examination. When the non-medical conditions have been satisfied, there can be no argument that the job offer was not “real” and, accordingly, no argument that the subsequent medical examination violated the provisions of the ADA.

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Employees Can Use Company Email for What?!


On December 11, 2014, the National Labor Relations Board (the “NLRB”) issued the long-awaited decision regarding employee use of company email in Purple Communications, Inc. The NLRB held that employee use of email for protected communications during non-working time is presumptively an employee right for any employee provided access to a company’s email systems.

The NLRB’s 3-2 decision overruled the NLRB’s previous 2007 decision in Register Guard. In the Register Guard decision, the NLRB held that an employer may completely prohibit employees from using the employer’s email system for communications related to union activity or protected concerted activity (Section 7 rights) so long as the employer’s ban is not applied discriminatorily. The National Labor Relations Act grants employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, such as communicating with other employees about union organizing.

Now, the NLRB has decided that it is presumed that employees who have access to their employer’s email system have a right to use the email system to engage in Section 7-protected communications on non-working time. The Board did not completely shut the door for employers to regulate email. However, an employer may rebut the presumption by demonstrating that “special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.” That appears to be something of an illusion, though, since the Board stated that it anticipated that it would be the “rare case” where special circumstances justify a total ban on non-work email use by employees. The Board also emphasized that the “mere assertion of an interest that could theoretically support a restriction will not suffice” and that employers must demonstrate a connection between the interest it asserts and the restriction.

Other than recognizing in a footnote that an employer’s interests in protecting its email system “from damage or from overloads due to excessive use, would of course be relevant”, the Board did not elaborate on what the “special circumstances” may be that would justify restrictions on email. This will undoubtedly cause a headache for employers when looking to adopt restrictive email policies. While it is uncertain as to what these “special circumstances”, if there ever could be any, are that would allow an employer to restrict its employees’ email use, the limitations of this decision are certain:

  1. This decision is limited to only email systems and does not apply to any other electronic communications systems.
  2. The decision is limited to email use by employees only. The Board did not find that nonemployees have rights to access an employer’s email system.
  3. The decision does not require an employer to grant employees access to its email system where it has not chosen to do so.
  4. The presumption that employees with access to email have a right to use that email for Section 7-protected communications is limited to nonworking time.
  5. Employers are not prohibited from restricting employee use of email if the employer can show that special circumstances make the presumption described above inappropriate in its workplace.
  6. Employers are not prohibited from establishing uniform and consistently enforced restrictions, such as prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.
  7. Employers are not prohibited from monitoring their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability.

The decision equally leaves open many uncertainties, with more expected as the cases develop in this area. For instance, the decision fails to answer the following questions:

  1. How is the line drawn between working and non-working time?
  2. Which employee’s “time” is it? Is it the sender’s time or the receiver’s time? What happens when an employee on a break emails another employee who is not on a break?
  3. How are emails from a private source to a company email to be treated?
  4. May employees forward emails to coworkers from third parties?
  5. How are emails with attachments to be treated (e.g. attached union cards)?
  6. Are employers allowed to implement restrictions based on the quantity of emails? Are employers required to allow 100 emails in a day?
  7. May employers still limit employees’ personal use of email systems?

This decision illustrates the Board’s current agenda, which is to expand employee rights. Employers should review their employee handbooks and communication policies to determine whether their current policies restrict employee use of email systems. Employers should be cautious in adopting any ban on nonbusiness-related emails. We will continue to monitor these cases and provide updates as cases interpreting this decision develop.

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Employer Off-Duty, No-Access Rules: The NLRB Flops Again!


Many employers have policies that prohibit employees from hanging around the facility before or after working hours. Often, these policies are adopted as a mechanism for ensuring security of the facility, providing a distraction-free workplace, and preventing employees from working off the clock.

As innocuous as off-duty access policies may seem, the National Labor Relations Board (the “NLRB”) continues to target employers who maintain and enforce policies which, in its view, stifle an employee’s right to engage in protected, concerted activity under the National Labor Relations Act (the “NLRA”) (typically referred to as “Section 7 rights”). Simply put, an employer cannot implement an off-duty no access rule that limits an employee’s right to engage in union activity. This applies to union and non-union employers alike.

For nearly 40 years, the NLRB has maintained the same three-part test to determine the legality of off-duty employee access rules. The purpose of the test, originally articulated by the NLRB in Tri-County Medical Center, 222 NLRB 1089 (1976), is to balance the property interests of an employer against the employees’ Section 7 rights. The NLRB will find an off-duty employee access policy lawful only if it:

  1. limits access solely with respect to the interior of the facility and other working areas;
  2. is clearly disseminated to all employees; and
  3. applies to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activities.

A series of recent decisions by the NLRB interpreting the third element of the Tri-County Medical test further demonstrates the substantial limitations placed on employers for controlling off-duty employee access to the workplace.

In St. John’s Health Center, 357 NLRB No. 170 (2011), the NLRB found that a healthcare provider violated the NLRA by implementing a rule that limited off-duty employee access to the workplace, except “to attend Health center sponsored events, such as retirement parties and baby showers.” The Board interpreted this policy to mean “[i]n effect, the [employer] is telling its employees, you may not enter the premises after your shift except when we say you can.”

Similarly, in Sodexo America LLC, 358 NLRB No. 79 (2012), the NLRB considered a hospital’s rule that prohibited both its own off-duty employees and its contractors’ off-duty employees from entering or reentering the interior of the hospital or any other work area outside the hospital, but provided for three exceptions: (1) to visit a patient, (2) to receive medical treatment, and (3) to conduct hospital-related business.

The Board concluded that the hospital’s first two exceptions (which permitted off-duty access by employees for purposes of visiting a patient or receiving medical treatment) did not violate the NLRA because access pursuant to these exceptions was unrelated to the employees’ employment and because that access was sought as members of the public rather than as employees.

Notwithstanding, the NLRB concluded that hospital’s third exception to its prohibition against off-duty access for “hospital related business” was unlawful because it essentially allowed the employer “free rein to set the terms of off-duty employee access.”

On November 19, 2014, following the U.S. Supreme Court’s Noel Canning decision, which effectively vacated the 2012 Sodexo opinion, a 3-member Board reconsidered that decision. This time, the Board “reversed” a portion of its 2012 opinion and instead held that the hospital’s policy exception for conducting “hospital-related business” was lawful.

Crucial to its analysis was the fact that the hospital had narrowly and expressly defined “hospital-related business” as “the pursuit of the employee’s normal duties or duties as specifically directed by management”. In other words, the NLRB concluded that the provision was not really an exception to the policy but a clarification that employees who were not working their regular shifts but were nevertheless performing their duties as employees under the direction of management could access the facility.

The NLRB found that although these employees would be “off duty” (i.e. not working their regular shifts) by the policy’s definition, they are “on duty” under the term’s ordinary meaning. Thus, the Board concluded that provision allowing access for hospital-related business does not violate the Tri-County Medical third element that a valid no-access rule must apply to off-duty access for all purposes.

The Board majority distinguished the lawful Sodexo policy from one found to be unlawful in St. John’s Health Center, which allowed access for “[h]ealth center sponsored events, such as retirement parties and baby showers,” because there was no indication that employees would be paid or considered to be working during these events.

Finding a coherent takeaway from these recent Board decisions is admittedly a challenge. The rule in St. John’s Health Center, gave no indication that employees would be paid or considered to be working during these company-sponsored events. Because of this, the Board apparently concluded that this in effect gave the employer unlimited discretion to permit off-duty employee access simply by sponsoring an event. The off-duty “exception” in the Sodexo case, however, covered only employees who would understand themselves to be “on duty”. In short, it seems the lawfulness of employer off-duty access policies will hinge on the amount of discretion an employer has in determining when an employee is “on duty” and thus; permitted to access the facility.

Despite the ongoing confusion in the NLRB’s application of the Tri-County Medical test and seemingly contradictory opinions concerning this rule, employers should review their current off-duty access policies and eliminate, to the extent possible, the use of employer discretion in granting employees off-duty access, including any exceptions for “employer-sponsored” events and “employer-approved” purposes.

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The NLRB Issues Its Quickie Election Regs


On December 12, the National Labor Relations Board (“NLRB”) issued its long anticipated, or perhaps dreaded, regulations designed to expedite elections, thus improving organized labor’s opportunities to organize. The issuance of those rules follows, by one day, the NLRB decision in Purple Communications, which is described elsewhere in this newsletter.

The regulations establish a fast track process for litigating issues involved with the election and proceeding to the election itself.

The new rules include the following:

  • A hearing, if one is necessary, will generally be held within eight days of the filing of the petition.
  • The day before the hearing the employer will be required to submit a list of issues it believes exists with respect to the petition’s description of the voting group, as well as a list of voters in the group described by the union and an additional list if the employer believes that other employees should be eligible to vote.
  • At the hearing, individual employee eligibility normally will not be litigated. By and large, the litigation will be limited to which job groups, departments, or geography locations will be included in the election.
  • Two days after the post-hearing decision on the issues, the employer will be required to submit a list of all eligible voters in the unit found to be appropriate, including their phone numbers (including cell numbers) and email addresses, where the employer has them available.

As a result of the above changes, the time between the filing of the petition and the election will be shortened from approximately forty days to, in most cases, fourteen to twenty-one days.

Since the regulations will not be effective until April 14, 2015, employers now have an opportunity to review not only their email policies, pursuant to Purple Communications, but also to consider its game plan when it becomes aware that union organizing is going on or may be starting up. Employers will no longer have the luxury of a six to seven week campaign during which it can tell its side of the story. It must be prepared to react quickly upon gaining knowledge of a union’s organizational campaign.

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What To Do When You Don’t Agree With A Doctor’s Medical Release


When an employee returns from medical leave, employers often question the employee’s “fitness” to return to duty. Most employers have written policies requiring employees to produce a medical note from their doctor releasing them back to work. However, a medical release does not always resolve the issue and the employer may have additional concerns.

For example, consider a situation I recently encountered with a client. An employee had been off work for an extended period due to depression and mental problems. He completed a medical certification and was approved for leave under the Family and Medical Leave Act (FMLA). During his absence, the employee posted numerous comments on his Facebook page which indicated that he may be suicidal and reckless. Shortly after the Facebook post, his doctor released him back to work without any restrictions. This raised serious concerns for the Company and coworkers who saw the Facebook posts.

What can the employer do under the FMLA?

Under the FMLA, the employer does not have to accept a general release to return to work. Instead, the Company can require the employee’s doctor to provide a fitness-for-duty certification. Under a fitness-for-duty certification, the employee’s doctor must specifically address the employee’s ability to perform the essential functions of his or her job. The employer can provide a list of the essential job functions and other relevant information for the doctor to consider (i.e., a copy of the Facebook post or any other recent information raising concerns about the employee’s mental stability).

There are a couple of things to note about a fitness-for-duty certification. First, the employer must have a uniform policy or practice that requires all similarly-situated employees to obtain and present the certification. Second, once the certification is completed, the employer cannot challenge the doctor’s opinion by seeking a second or third opinion. An employer may call the employee’s doctor to obtain a clarification or to authenticate the document, but cannot go any further or delay the employee’s return to work.

What are the employer’s rights under the ADA?

If the employer’s concerns are not alleviated by following the FMLA procedures, there is another option that may be available under the Americans with Disabilities Act (ADA”). An employer may require a medical examination if there is a “reasonable belief” that the employee’s ability to perform essential job functions will be impaired or if the employee poses a direct threat to health or safety. The medical examination must be job-related and be consistent with business necessity.

In order to go this route, the employer must have “reason to doubt” the employee’s ability to perform the essential job functions. For example, there could be conflicting opinions received from the employee’s doctor or other evidence casting doubt on the employee’s ability to perform his or her job. Arguably, the Facebook post in the above example may suffice. A medical exam under the ADA does not have to be performed by the employee’s own doctor. The Company can pay its own healthcare provider to conduct the evaluation.

Employers should always tread carefully when seeking medical information. Medical exams and certifications must be narrowly tailored to address only the particular injury or illness from which the employee suffers. In other words, employers need to be careful not to mandate a general physical or a certificate of “good health.” Many employers get into trouble by trying to obtain additional health information. Finally, employers must always consider whether they are consistently applying these requirements to all similarly-situated employees to avoid any claim of disparate treatment.

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Supreme Court Narrows Categories Of Work Covered By The FLSA


Are all activities required by employers compensable under the Fair Labor Standards Act? How about activities that are for the primary benefit of the employer? Not necessarily, according to the United States Supreme Court.

On December 9, the Supreme Court unanimously ruled that a staffing agency was not required to pay workers at Amazon warehouses for the time they spent waiting to go through a required security screening at the end of the day. In that case, Integrity Staffing Solutions, Inc. provided warehouse staffing to throughout the United States. The warehouse employees were employed to retrieve products from the shelves and package those products for delivery to Amazon customers. Integrity Staffing required the warehouse employees to undergo a security screening before leaving the warehouse at the end of each day. During the screening, employees were required to remove items such as wallets, keys, and belts and pass through metal detectors.

Two employees filed a putative class action against Integrity Staffing on behalf of similarly situated employees and alleged that they were entitled to compensation under the Fair Labor Standards Act (FLSA) for the time spent waiting to undergo and actually undergoing the security screenings, which the employees claimed amounted to 25 minutes. The employees also alleged that the screenings were solely for the benefit of the employers and their customers because they were conducted to prevent employee theft. The United States Court of Appeals for the Ninth Circuit found that these activities were compensable because Integrity Staffing required the security screenings to prevent employee theft and that the screenings were necessary to the employees’ primary work as warehouse employees and done for Integrity Staffing’s benefit.

The Supreme Court disagreed. The Portal-to-Portal Act (the Act), which amended the FLSA, provides that companies need not pay for “preliminary” or “postliminary” activities. The Supreme Court previously interpreted the Act to require pay only for tasks that are an “integral and indispensable part of the principal activities for which covered workmen are employed.” The Court determined that the security screenings were not the principal activity or activities which the employee is employed to perform. The employees were not employed to undergo security screenings but rather to retrieve products from warehouse shelves and package those products for shipment to Amazon customers. As a result, the Court found that the activity, even though required by the employer, was not compensable under the FLSA.

This decision is a win for employers because it further narrows the categories of work that are covered under the FLSA. Additionally, the Court made clear that the integral and indispensable test is “tied to the productive work that the employee is employed to perform” and explicitly rejected tests that focused on whether an employer requires a particular activity or whether the activity is for the benefit of the employer as overbroad.

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The President’s New Immigration Initiative: Its Potential Impact on U.S. Businesses


On November 20, 2014, President Obama announced certain executive actions on immigration. The media has focused on the actions that affect the millions of immigrants that are here without documentation. There are several aspects, however, that will affect employers who may seek work authorization for foreign-born workers.

Green Card Status:

The executive branch may promulgate regulations allowing individuals with an approved employment based visa petition (otherwise known as a I-140 petition) to file an application for a green card immediately, regardless of whether there is an available visa. Currently, a foreign national must wait “for their place in line” to come up before they can file an application for a green card. The process then could take many more months before approval. Allowing for pre-filing would shorten the amount of time for final approval of the green card petition.

The executive branch has also requested that the Department of Labor come up with a plan to “modernize” the “PERM” or “labor certification application” program; which is the first step to advertise a job as a part of the green card application process.

There also will be steps taken to improve the ability of workers to move to other “same or similar” jobs while petitions are pending and to make it clear that some promotions will be acceptable.

Spouses of H-1B Holders:

Currently, those in the U.S. in “H-4 status,” specifically the spouses of employees in H-1B status, are not permitted to work. The government anticipates finalizing regulations that would allow those certain spouses in H-4 status to obtain employment authorization, but only if they have an approved visa petition (i.e., an approved I-140 petition). However, we would caution foreign nationals and their employers that they should not rely on this information, or take any action based upon it, as there could be delays or changes.

Students; Practical Training:

Foreign nationals here in student status (known as “F-1”) are allowed limited periods of time of lawful employment subsequent to being granted their degrees, referred to as Optional Practical Training (“OPT”). Currently, those in STEM (Science, Technology, Engineering and Math) fields are granted additional time for OPT. The executive branch has directed that government agencies develop regulations that expand the degree programs eligible for additional OPT and extend the amount of OPT time granted to STEM graduates. Further, the executive branch has directed government agencies to require stronger ties to degree-granting institutions to ensure that a student’s practical training furthers the student’s full course of study.

L-1B: Intercompany Transferees:

L-1B status, by regulation, can be granted to employees who have been working for the foreign branch of a U.S. company for at least one year and have “specialized knowledge” relevant to the position. The Department of Homeland Security has so far given very vague guidance and inconsistent interpretations of the term “specialized knowledge”, and the executive branch has ordered that the immigration service provide “clear and consolidated” guidance related to the term “specialized knowledge.”

Deferred Action:

There presently is in place a Deferred Action for Childhood Arrival (DACA) program, which would apply to immigrants who came to the U.S. when they were under the age of 16, have resided here since June 2007, were under 31 years of age as of June 2012, and were not convicted criminals. They also would have to be a high school graduate or still attending school. Now, the DACA cutoff date will be January 2010, and still apply to anyone who was brought here under the age of 16. Those individuals can apply for temporary relief and work authorization.

Ultimately, none of the actions described above are, as yet, final. Where additional or reversed regulations are called for, the delay could be measured in months, if not years. Particularly with the current political landscape in Washington, we would caution employers and their employees that the timelines, and plans outlined by the President, may change or be delayed. Additionally, please keep in mind that even with the current workload, there can be significant delays in processing various petitions. The potential impact of processing large numbers of additional petitions is unknown. We will keep you updated as to any significant developments that may affect your employees or potential employees moving forward.

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Five Practical Tips For Providing Reasonable Accommodations in 2014


ADA requestIn recent years, the EEOC has put an emphasis on reasonable accommodations under the Americans with Disabilities Act (“ADA”) and its amendments, which has led to increase in failure to accommodate claims under the ADA. Set forth below are five practical tips to remember when a disabled employee is entitled to a reasonable accommodation.

1. Recognize a Request and Immediately Engage in the Interactive Process. Under the ADA, employers are required to engage in the interactive process when an employee requests a reasonable accommodation. In fact, part of an employee’s claim that an employer failed to accommodate the employee is a claim that the employer failed to engage in the interactive process. The first step of the interactive process is recognizing that a request has been made. Generally, it is the employee’s duty to make a reasonable accommodation request. The employee is not required to use any magic buzzwords. It is important for employers to recognize when an employee has made such a request and important to train supervisors and managers in recognizing such a request. The employee only needs to ask for some change or adjustment in the workplace and link that request to his or her disability. The employer’s response to the request must be “expeditious”, and a delay in responding may be a cause of action for the employee. After a request has been made, the employer has an obligation to engage in the interactive process, which requires the following steps: (i) recognize an accommodation request; (ii) gather information; (iii) explore accommodation options; (iv) choose a reasonable accommodation; (v) implement the reasonable accommodation; and (vi) monitor the reasonable accommodation.

2. Let the Employee Do the Talking. The best source of information about a reasonable accommodation request will likely come from the employee since he/she is the one requiring the accommodation. A good tool to use during the interactive process is a questionnaire for the employee to fill out. The employee should be asked to describe his or her impairment, identify his or her limitations, and provide suggestions for accommodations. Additionally, seriously considering the employee’s preference may be the best choice in maintaining a happy workforce and preventing a later claim, as long as such a request is reasonable. For example, a federal appeals court recently found that an employee was denied a reasonable accommodation where the employer rejected the employee’s choice of telecommuting to work, despite the fact that the employer offered other options to accommodate the employee. For more information on this case, see “Do I Really Need To Come To Work? New Frontiers In ADA Accommodation”. As an update on that case, on August 29, 2014, the United States Court of Appeals for the Sixth Circuit voted to rehear the case en banc. This means that the previous ruling by the court has been vacated and the case will be heard again by the full court. Stay tuned for an update when the Sixth Circuit issues its new decision.

3. Don’t Forget About Reassignment. If an employee has permanent restrictions and can no longer perform the essential functions of his or her job, an employer is still required to engage in the interactive process and consider job reassignment. If there is no vacant equivalent position for which the employee is qualified, the employee may be reassigned to another job with less pay and benefits as an accommodation. Don’t forget about the FMLA, however, which requires that an employee be restored to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment upon return from FMLA leave. Remember, employers are not required to create a new job, move another employee, promote the employee or violate other employees’ rights under a collective bargaining agreement or other employment agreement when considering reassignment as an accommodation. Additionally, in the Eighth Circuit, which includes Nebraska, Minnesota, Iowa, Missouri and North and South Dakota, if there is a vacant position, the employer may follow company policy by choosing the most qualified candidate for that position.

4. Don’t Get Caught in the Indefinite Leave Trap. In the Eighth Circuit, an employer may deny a request for leave if the leave is indefinite and the employee cannot provide a return date or a timeframe for when they will return. The EEOC, on the other hand, requires that an employer prove an undue hardship before denying an indefinite leave accommodation request. These types of situations should always be evaluated closely by both the employer and counsel prior to terminating the employee.

5. Tread Lightly if using a Maximum Leave Policy. Many employers have a maximum leave policy and terminate employees for exceeding the maximum amount of leave available under the policy (for instance if an employee takes a medical leave of absence and cannot return to work after six months they are automatically terminated). The EEOC has taken the position that these policies are a per se violation of the ADA. For more information on the EEOC’s position, see “EEOC And Inflexible Leave Of Absence Policies: A Hot Button Issue For 2013”. However, a federal appeals court recently rejected the EEOC’s position and concluded that these types of policies are not inherently discriminatory, but rather protect the rights of disabled employees. For more information on that decision, see “Maximum Leave Policy Found To Be Fair And Lawful” . Because of the EEOC’s position and the unknown position of other courts, employers should still be wary about such policies. Employers should still engage in the interactive process and discuss the possibility of additional leave with a disabled employee in the event the employee reaches the maximum leave under such a policy rather than enforcing automatic termination under such a policy.

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