Kullman Firm Newsletter

REMINDER: UPDATED I-9 FORM BECAME MANDATORY ON SEPTEMBER 18, 2017

As we previously reported, the U.S. Citizenship and Immigration Services (“USCIS”) recently released a revised version of the Form I-9. Be reminded that the new version became mandatory on September 18, 2017. For more information, click here.

E-VERIFY EMPLOYERS: TIME TO CHANGE YOUR POSTERS!

E-Verify has released a redesigned participation poster which informs current and prospective employees of their legal rights, responsibilities, and protections in the employment eligibility verification process. The new poster combines into one poster the separate English and Spanish posters that E-Verify employers currently must display. E-Verify Employers must replace their E-Verify posters anytime a new version is released. E-Verify Employers are still required to display the Immigrant and Employee Rights posters in English and in Spanish. Posters must be placed in a location where current and prospective employees can see them. The new poster can be downloaded when participants log into E-Verify.

RAGE, RAGE AGAINST THE DYING OF THE LIGHT!

Although he has indicated that he will step-down at the end of October, the four-year term of the NLRB’s current General Counsel, Richard Griffin, which is arguably the most powerful position at the NLRB, formally ends on November 3. Prior to serving as the General Counsel, Griffin occupied the same role with the International Union of Operating Engineers, and employers and management-side labor counsel will universally agree his tenure can be accurately characterized as pro-union.

Even though he is stepping down a few days early, Griffin does not appear to be going away quietly. Griffin recently issued an Advice Memorandum urging the NLRB to extend what are referred to as Weingarten rights to non-union settings. Weingarten rights are the rights of unionized employees to be represented by a co-worker during investigatory interviews. If the NLRB agrees, employees in non-union settings also would be afforded the right to representation by a co-worker when faced with an interview that could result in discipline or termination. With President Trump’s recent appointments of Marvin Kaplan and William Emanuel to the NLRB, and President Trump’s selection of Peter Robb, a management-side labor and employment counsel to replace Griffin, it is unlikely Weingarten rights will be extended in this manner.

THE ADA IS NOT THE NEW FMLA!

In a welcome decision for employers, the United States Court of Appeals for the Seventh Circuit ruled recently that granting an employee additional leave beyond that provided for by the FMLA is not a “reasonable accommodation” under the Americans with Disabilities Act (“ADA”). As stated by the Court, the ADA is an anti-discrimination statute, not a leave entitlement statute. The Court also noted that the plain language of the ADA states a reasonable accommodation is one that enables an employee to “perform the essential functions” of the job, and then it noted the obvious – a leave of absence excuses the inability to work as opposed to enabling an employee to work.

While this is certainly a great decision for employers, and hopefully other courts will begin to follow suit, the decision is in stark contrast to the EEOC’s regulations on this issue. For years, the EEOC has staunchly maintained that a leave of absence can constitute a reasonable accommodation an employer is obligated to provide. Although employers within the Seventh Circuit’s jurisdiction can take some comfort in the decision, the decision likely will not change the EEOC’s position in other jurisdictions and employers should be careful when assessing requests for leaves of absence to determine if the same could be a reasonable accommodation within the eyes of the EEOC or other court.

EMPLOYER HELD NOT RESPONSIBLE FOR OVERTIME WORK THAT WAS INDISPUTABLY PERFORMED BY EMPLOYEE

The plaintiffs in Allen v. City of Chicago were current and former members of the Chicago Police Department’s Bureau of Organized Crime (“Bureau”), who claimed that the Bureau did not compensate them for work they performed on their smartphones while off-duty. The parties in Allen did not dispute that the Bureau knew that the plaintiff officers worked overtime on their smartphones. Instead, they disagreed over whether the Bureau actually or constructively knew that the officers were not reporting that work.

Generally, employers are obligated to pay for all work they know about, even if they did not request the work, want it done, or had a rule against doing the work. Thus, if an employer wants to avoid paying overtime, it is responsible for exercising control and seeing that overtime work is not performed. However, employers are not required to pay for work they do not know about and have no reason to know about (so long as they have not prevented or discouraged accurate reporting of overtime).

Following a bench trial, the district court agreed with the plaintiffs that some of their off-duty time was work that was compensable under the Fair Labor Standards Act, and it even acknowledged evidence that Bureau supervisors knew plaintiffs sometimes worked off-duty on their smartphones. But the court also found that the “supervisors did not know or have reason to know that plaintiffs were not submitting slips and therefore were not being paid for that work.” The court concluded that the Bureau did not prevent the plaintiffs from requesting payment for the non-scheduled overtime work and did not know that they were not being paid for it.

The plaintiffs appealed, and the U.S. Seventh Circuit Court of Appeals (whose rulings apply to all Illinois, Indiana and Wisconsin employers) recently affirmed.  Allen reinforces the importance of employers establishing a reasonable process for employees to report uncompensated work time. While employers are required to make a good-faith, reasonable effort to track all work time for non-exempt employees, they will not be held liable for employees who do not report their time through no fault of the employer.

PREDICTING THE UNPREDICTABLE: IS PREDICTIVE SCHEDULING IN YOUR FUTURE?

The concept of predictive scheduling generally requires employers to provide employees with advanced notice of their work schedules, pay them for “last-minute” schedule changes, and compensate on-call employees who are not called into work. The argument in favor of predictive scheduling is that it provides predictability to employees’ work schedules.

A “Schedules that Work Act” was introduced in the United States House of Representatives and referred to committees in June 2017. A variety of predictive scheduling laws have also been passed by the cities of Seattle, San Francisco, and New York City, as well as by Oregon, Vermont, and New Hampshire. Other states, however, including Arkansas, Georgia, Ohio, Iowa, and Tennessee, have passed laws prohibiting local governments within their boundaries from enacting predictive scheduling ordinances.

Is predictive scheduling in your future? If your city has implemented a local minimum wage, chances are that a predictive scheduling ordinance may be forthcoming. Regardless, if the Schedules that Work Act is passed by Congress, employers (with fifteen or more employees) can be ensured that both their payroll expenses and paperwork burden will increase.

JOIN US FOR OUR ANNUAL EMPLOYMENT LAW SEMINAR!

Please join us for employment law seminars in New Orleans, Louisiana, on Tuesday, October 17, 2017, and Mobile, Alabama, on Friday, October 27, 2017. More information on how to register for these complimentary events may be found here: New Orleans and Mobile.

We look forward to seeing you!