Kullman Firm Newsletter

NLRB GENERAL COUNSEL’S MEMORANDUM INDICATES FUTURE CHANGES

Peter Robb, the National Labor Relations Board’s new General Counsel, has moved quickly in issuing comprehensive guidelines to the agency which unequivocally indicate that the era of activism and overreach by the Board will likely end. Two weeks after being sworn in as General Counsel, Robb has issued Memorandum 18-02, instructing NLRB regional directors on which types of charges should be submitted to his office for advice, and rescinding policy memoranda issued by his predecessor. While the memorandum is only five pages, its substance is significant and telling. After eight years of reversing decades of legal precedent in favor of employees, the NLRB seems headed toward creating a less polarized labor environment.

The subject line of the Memorandum is “Mandatory Submissions to Advice” and it directs Regional Offices to submit to the Division of Advice “cases involving issues that the Board has not decided, and any other cases that the region believes will be of importance to the General Counsel.”

Robb also signals that he will ask the NLRB to overturn numerous controversial Obama-era Board precedents. Specifically, his Memorandum identifies 26 examples of Obama-era decisions that “might support issuance of complaint [under current Board law] but where [his office] also might want to provide the Board with an alternative analysis.”  Among other topics, this includes:

  • A finding of joint employer status based on evidence of indirect or potential control over the working conditions of another employer’s employees.
  • Concerted activity where the employee engaged in “obscene, vulgar, or other highly inappropriate conduct.”
  • Requiring employers that allow employees to use their email systems to allow employees to use those systems to engage in protected concerted activities under Section 7 of the National Labor Relations Act.

The GC memorandum states that until the Board overturns existing precedent on these issues, Robb’s office will continue to enforce the Board’s rulings as written, though the GC reserves the right to suggest “alternative analysis” in certain situations. By highlighting these issues and making them mandatory subjects for advice from the GC’s office, the memorandum allows for those prior decisions to be overruled or amended by the new members of the Board.

The directive from the GC to all Board regions is likely to lead to a re-examination over time of the some of the most far-reaching and precedent-setting decisions from the prior administration. Although change is typically slow, the GC’s directive is a first step in the right direction.

FORM I-9 SCAM WARNING

The United States Citizenship and Immigration Service (“USCIS”) has advised stakeholders that it has learned that employers are receiving scam emails requesting that Form I-9s be sent to the fraudulent email address: news@uscis.gov.  USCIS stated that employers should not respond to the email nor click the link that is found in the email.  The law does not require employers to submit Form I-9s directly to USCIS.

If Immigration and Customs Enforcement (“ICE”) chooses to audit an employer’s Form I-9s, they will serve the employer with a Notice of Inspection (“NOI”), which is an administrative law subpoena.  The NOI will include the name and contact information of the ICE Special Agent handling the investigation and will contain a list of documents, including the Form I-9s, which are being requested as part of the NOI.  The NOI will be served personally by a Special Agent.  Other federal and state agencies can request to inspect a company’s Form I-9s including the U.S. Department of Labor, U.S. Department of Justice and the Equal Employment Opportunity Commission.  These requests are either sent via certified mail or personally by an Investigator for the Agency.  Special Agents and Investigators are required to carry and show to employers, their agency identification so that you can confirm the legitimacy of the request.

Form I-9s contain private information of the employee and the law requires that the employer store and maintain its Form I-9s in a manner which protects the confidentiality of this information.  Employers should verify the authenticity of the request before producing its Form I-9s.  Failure to do so could result in liability to the employer for identity theft and other privacy law breaches.

TEXAS DISTRICT COURT REAFFIRMS THAT SEXUAL ORIENTATION IS NOT A PROTECTED CHARACTERISTIC UNDER TITLE VII IN THE 5TH CIRCUIT.

In a recent decision from the Northern District of Texas, the United States District Court in Berghorn v. Xerox Corporation held that sexual orientation is still not recognized as a protected characteristic under Title VII.  In Berghorn, the Plaintiff alleged that he was discriminated against on the basis of his sexual orientation in violation of Title VII.  Xerox, which was represented by the Kullman Firm, argued that the Plaintiff was not discriminated against, and in any event, his claim should be dismissed because the Fifth Circuit did not recognize sexual orientation as a protected characteristic under Title VII.

In turn, the Plaintiff argued that despite Fifth Circuit precedent to the contrary, Title VII does, in fact, protect against discrimination based upon sexual orientation because the Fifth Circuit declined to revisit the issue in two cases decided in 2015 and 2016 and because the Seventh Circuit in Hively v. Ivy Tech Cmty. Coll. of Ind. recently found that sexual orientation was indistinguishable from sex discrimination for purposes of Title VII, and thus a protected characteristic.

The District Court agreed with Xerox and disagreed with the Plaintiff, holding that until the Fifth Circuit or the Supreme Court overruled standing Fifth Circuit precedent or until Congress elected to extend Title VII’s protection to sexual orientation, the precedent of the Fifth Circuit, not the Seventh Circuit, bound the Court.  Accordingly, the Court held that Plaintiff’s sexual orientation discrimination claim failed as a matter of law and dismissed it with prejudice.

TRANSGENDER RIGHTS POSTER REQUIRED FOR CALIFORNIA EMPLOYERS AS OF JANUARY 1, 2018

Legislation recently signed by California Governor Jerry Brown will require all California employers to display a workplace poster related to transgender rights beginning January 1, 2018.  The legislation, Senate Bill 396, requires the poster to be displayed “in a prominent and accessible location in the workplace.”

The Department of Fair Employment and Housing (DFEH) recently published the English and Spanish language versions of the poster, which may be downloaded by employers at https://www.dfeh.ca.gov/resources/posters-and-brochures-and-fact-sheets/poster-and-brochure-tab-list/. Chinese, Korean, Tagalog and Vietnamese versions of the poster are forthcoming.

The DFEH website reminds employers that any required DFEH poster must be “conspicuously displayed where they can be easily seen and read by all employees and job applicants.”  If ten percent or more of a company’s workforce speaks a language other than English, the poster must also be displayed in that language or languages.

Employers may purchase posters from other providers, and many provide an all-in-one poster that contains all required notices.  However, the online DFEH posters also provide an easy and convenient option for employers to comply with the new requirements under SB 396.

Either way, California employers should ensure that they comply with the new transgender rights poster requirement by January 1, 2018.

LOUISIANA EMPLOYERS BEWARE: THE LOUISIANA WORKFORCE COMMISSION IS “RAMPING UP” EFFORTS TO HALT THE MISCLASSIFICATION OF WORKERS!

It is no secret that, in recent years, governmental agencies nationwide have been attempting to identify and halt the misclassification of workers. Misclassification refers to instances where a worker who by law is an employee is incorrectly classified as something other than an employee. Misclassification most often occurs when an employer classifies a worker as an independent contractor (rather than an employee) in an effort to avoid having to provide benefits and other protections provided by law, such as minimum wage, overtime compensation, family and medical leave, unemployment insurance, and safe workplaces.

The Louisiana Workforce Commission (LWC) recently issued a press release warning employers that GAME ON, a unique task force found only in Louisiana, would be “ramping up” its efforts even more in 2018. Specifically, GAME ON, a partnership of LWC and the Louisiana Department of Revenue, with cooperative agreements with the Internal Revenue Service and the U.S. Department of Labor’s Wage & Hour Division, will be implementing audit software that features built-in analytics to help identify suspect            companies and will be streamlining the audit process, which will allow for the investigation of more companies in less time.

Employers are encouraged to assess their workforce and ensure that their workers are properly classified, as the potential penalties for misclassification can be significant. In addition to having to pay taxes on unreported wages, companies with identified “willful” offenses of misclassified workers face financial penalties of up to $1,000 per offense, with each misclassified employee considered a separate offense. Multiple offenses can also result in imprisonment and a prohibition preventing the offending employers from receiving state or government contracts.

DEPARTMENT OF LABOR CONSIDERING REPEAL OF CONTROVERSIAL TIP-POOLING RULE

On Tuesday, December 5, 2017, the Department of Labor (DOL) published a notice of proposed rule-making in the Federal Register that it intends to rescind the 2011 “tip-pooling rule,” which barred employers from re-distributing tips to non-tipped employees regardless of whether the employees were paid the federal minimum wage.

The 2011 rule revised and expanded upon a previous rule that banned employers from taking or “sharing” the tips of employees paid sub-minimum wage with non-tipped employees, like kitchen staff.

The DOL is reconsidering the rule in light of the “extensive litigation” that has resulted since its inception. Notably, this extensive litigation includes the National Restaurant Association Case, where a split Ninth Circuit, reversing a district court, upheld the 2011 rule. In June, the Tenth Circuit split with the Ninth Circuit’s decision in the case and parallel petitions for certiorari have been filed with the Supreme Court asking it to review the Ninth Circuit’s decision.

Members of the public have 30 days from December 5th to submit comments to the DOL on the proposed rescission of the 2011 rule.