Loading...

Follow Stoel Rives Labor And Employment Blog on Feedspot

Continue with Google
Continue with Facebook
or

Valid

With all of the buzz about potential impending raids by U.S. Immigration and Customs Enforcement (“ICE”), many employers are understandably concerned about the rights of their employees, as well as their own rights and obligations with respect to ICE activity.

Employers must be careful to not provide assistance to employees beyond providing factual information about the employee’s rights, such as the right to remain silent, the right to refuse to sign any documentation, and the right to speak with an attorney. You cannot instruct employees to answer questions in a particular way or forbid them from answering questions, and you cannot hide employees or assist them in leaving the premises.

If ICE agents arrive at your workplace, you should take the following steps:

  • Contact your attorney
  • Confirm that there is a warrant and review it to ensure it has been signed by a judge and to determine its scope
  • Accompany ICE officials at all times and document everything
  • Refuse to discuss policies, practices, or particular employees with ICE officials
  • Do not hide employees, assist with their escape, or mislead ICE officials

The American Immigration Lawyers Association and American Immigration Council’s ICE Worksite Raid: Employer Rights and Responsibilities is a great reference, and can be helpful in providing information to those in management or supervisory roles who may encounter ICE officials. The National Employment Law Project and National Immigration Law Center have a similar reference tool here.

If you would like to circulate materials to your employees informing them of their rights, the American Civil Liberties Union has materials available in English and Spanish.

For further discussion of this issue, see our previous blog post on this issue here. If you have further questions or anticipate that your business may be targeted in an ICE raid, please contact one of our labor and employment attorneys.

The post Resources for Protecting Your Company During an ICE Raid appeared first on World of Employment.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

The National Labor Relations Board (the “Board”) recently issued a decision in UPMC Presbyterian Shadyside that reverses longstanding Board precedent and holds that employers no longer have to allow nonemployee union representatives access to public areas of their property unless (1) the union has no other means of communicating with employees or (2) the employer discriminates against the union by allowing access to similar groups.

The UPMC case arose after the employer, a hospital, ejected two union representatives from its cafeteria, where they had been discussing organizational campaign matters with and providing union literature and pins to employees.  Previously and for many years, the Board had held that an employer could not restrict nonemployee union representatives from engaging in promotional or organizational activity in its public spaces, including cafeterias, so long as the union representatives were not “disruptive.”  In UPMC, the Board returned to a more common-sense approach and held that the National Labor Relations Act “does not require that the employer permit the use of its facility for organization when other means are readily available.”  Furthermore, although the union argued that other nonemployees (such as an employee’s friend) had been permitted to access the cafeteria, the Board responded that “[t]he fact that a cafeteria located on the employer’s private property is open to the public does not mean that an employer must allow any nonemployee access for any purpose.”  Rather, it would be the union’s burden to show “disparate treatment”—in other words, that the employer denied union representatives access while allowing other non-employees to engage in similar activity on the premises.  Because the employer demonstrated that it had previously acted to prohibit solicitation by other outside parties, the Board found that the employer had not discriminated against the union representatives.

The UPMC case is a significant victory for employers that maintain public areas such as cafeterias.  Going forward, such employers should maintain clear no-solicitation, no-distribution policies, and ensure that any rules against solicitation on company property are uniformly enforced.  Employers should also document any instances when they enforce the no-solicitation, no-distribution policy to defend against potential allegations of disparate treatment.

The post NLRB Gives Employers Greater Discretion to Limit Union Activity on Their Premises appeared first on World of Employment.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Oregon’s Legislature just enacted the most significant legislation for Oregon employers in years.  The new Workplace Fairness Act has been hailed as a #MeToo law and seems intended to curb incidents of sexual harassment in the workplace, but its reach is significantly broader than that.

Key Changes and Takeaways

  • Employers are now required to have a written anti-discrimination policy. Most employers already have one, and this was always best practice, but now it is a requirement.  Additionally, anti-discrimination policies must now include the following:
    • A description of the process to report suspected discrimination or harassment;
    • A specific individual, and an alternate, to whom reports can be made;
    • Notice that employees have five years from an alleged incident to bring legal action;
    • Notice that employees may not be required to enter into a nondisclosure or nondisparagement agreement, but an employee may request such provisions in an agreement. If an employee makes such a request, the employee has seven days to revoke the agreement; and
    • Advice to employees and employers to document any alleged incidents involving discrimination or harassment.

This policy must be provided to all new hires, made available at the workplace, and given to anyone who reports suspected discrimination or harassment.

  • Confidentiality, nondisparagement, and no-rehire provisions in a settlement agreement relating to discrimination or sexual assault are prohibited, unless an employee requests it. The new law provides no guidance on what an employee’s “request” must look like – for example, are arm’s-length negotiations on a severance or settlement agreement that includes such a provision sufficient?
  • The statute of limitations for many unlawful discrimination claims increases from one year to five years. This is a huge change and will greatly expand the number of discrimination claims against employers.  It may also impact employers’ retention policies; we recommend consulting with legal on what, if any, changes you should make going forward.   
  • “Golden parachutes” for bad actors can be voided. Employers will no longer be forced to pay an executive a generous severance as he or she walks out the door amid sexual assault allegations.  If, after a good-faith investigation into reports of discrimination or harassment made against a supervisor, an employer determines the supervisor engaged in unlawful conduct, the employer may void any severance or separation agreement with the supervisor.  This provision may make negotiations with incoming executives more difficult, but it may also protect the companies from public pushback.

These changes go into effect this fall (91 days after the Legislature adjourns).  Please contact your Stoel Rives attorney with any questions regarding this new law.

The post Oregon’s Workplace Fairness Act Means Major Changes for Oregon Employers appeared first on World of Employment.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

With its decision last year in Dynamex, the California Supreme Court fundamentally changed the test for determining whether workers are properly classified as either employees or independent contractors.  Specifically, and as for claims brought under the California wage orders, the Supreme Court adopted the “ABC test,” which involves an analysis of the following three factors:  (1) whether the worker is free from the control and direction of the hiring entity in connection with the performance of work, (2) whether the worker performs work that is outside the usual course of the hiring entity’s business, and (3) whether the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.  Since that time, California employers and various industry groups have been lobbying the California legislature left and right to take steps to either limit the ruling’s application or expand it.

On May 29, 2019, the California legislature seemed to declare a winner in those lobbying efforts with the California Assembly passing AB 5, which would codify the Dynamex decision.  Unlike the Supreme Court’s ruling in Dynamex, however, AB 5 would declare that the ABC test applies to all provisions of the California Labor Code and Unemployment Insurance Code, unless otherwise stated.  This would represent a significant extension of the Dynamex decision.

Like Dynamex, AB 5 would make it more difficult for employers to classify workers as independent contractors.  The law, however, does exclude from its scope certain professions including licensed insurance agents, certain licensed health care professionals, registered securities broker-dealers or investment advisers, a direct sales salesperson, real estate licensees, workers providing hairstyling or barbering services, and those performing work under a contract for professional services.  Employers in these professions would be able to classify their workers under the former test established by the California Supreme Court in S. G. Borello & Sons, Inc. v. Department of Industrial Relations.

Given its wide-ranging implications, AB 5 has the potential to once again change the game in terms of worker classification within the State of California.  Stoel Rives will continue to track this law and its implications as it continues through the legislative process.

The post California Legislature Moves to Codify Dynamex appeared first on World of Employment.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Spring is in the air and summer is around the corner. You can see the signs everywhere. Flowers. Chirping birds. Increasing temperatures. And summer intern resumes. Experienced HR professionals know they will soon receive many resumes from eager students or recent graduates hoping to work as interns in order to gain valuable experience and networking opportunities. Often, intern candidates offer to work for free in exchange for the chance to gain experience in a job or industry.

Of course the idea, however enticing, of free labor should raise red flags. Many “for profit” business have run into trouble by failing to pay minimum wage and overtime pay to “unpaid interns” who the courts concluded were actually employees. The courts have used the “primary beneficiary test” to determine whether an intern or student is, in fact, an employee under the Fair Labor Standards Act (FLSA).  See, e.g., Benjamin v. B & H Educ., Inc., No. 15-17147 (9th Cir. Dec. 19, 2017). Under the “primary beneficiary test,” courts examine the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. If the intern is not the primary beneficiary, they should be paid as an employee. Courts have identified the following seven factors in the primary beneficiary test:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The “primary beneficiary test” is described by courts as a flexible test, with no single factor as determinative. Courts will weigh the unique circumstances of each situation to determine whether a particular individual is an unpaid intern or a paid employee. If analysis of these circumstances shows that the individual is in fact an employee, they are entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the individual is an intern, they are not covered by the FLSA and are not entitled to either minimum wage or overtime pay under the FLSA. The Department of Labor Fact Sheet discussing the primary beneficiary test and unpaid interns can be found here.

At the end of the day, private employers seeking to benefit directly from eager students or graduates willing to work for the experience might find it difficult to satisfy the primary beneficiary test. But, an employer willing to provide work experience in order to be a good corporate citizen or to build relationships with schools or students, can likely structure an unpaid student intern program to meet those goals and comply with the law.

The post Are Employers Required to Pay Interns? appeared first on World of Employment.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

On April 22, 2019, the California Senate voted unanimously to update California’s anti-discrimination laws to include within the definition of the term “race” “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”  If the bill ultimately becomes law, California would become one of the first states in the nation to prohibit racial discrimination because of hairstyles.

Both California and federal laws are replete with laws prohibiting discrimination on the basis of race and other protected characteristics.  While those laws have been extended to protect certain religious headwear, courts have generally been reluctant to broaden those laws to protect non-religious hairstyles due to the position that such hairstyles are voluntary and nonpermanent.  California Senator Holly Mitchell, a Los Angeles Democrat, introduced SB 188 out of a concern that this reluctance allowed the proliferation of employer grooming standards that disproportionally affect African Americans and equate acceptable workplace grooming with majority standards of beauty.

While the bill was introduced to address legitimate and reasonable concerns about discrimination and the existence of both explicit and implicit bias in the workplace, some employers and commentators have expressed concerns that this new law could lead to frivolous claims or restrict an employer’s ability to require workers to wear certain protective coverings in the workplace.

Regardless of where you may stand on this issue, SB 188’s unanimous passage in the Senate portends the passage of this bill into law.  If and when that happens, employers with operations in California should take steps to update their policies and handbooks to ensure compliance.  This would include rethinking any grooming polices requiring employees to alter the appearance of their hair to conform to traditional appearance standards.  As for non-California employers, they should also keep a careful eye on this bill’s progress due to California’s status as a trendsetter in the area of employee rights.

The post California Legislature Proposes Legislation Broadening Racial Discrimination Laws appeared first on World of Employment.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

A little over six years ago, Yahoo! CEO Marissa Mayer issued her edict (well, memo) kiboshing work-from-home arrangements, driving Yahoo! workers back to their desks and sending shock waves that reached far beyond affected employees.  Mayer’s mantra was that in order to be “one Yahoo!,” workers needed to be physically connected in the workplace.  Her ultimatum ground the notion of telecommuting at Yahoo! to a screeching halt:  Get back to the office or don’t let the door hit you on the way out.

With probably more fallout externally than internally, Mayer’s remote work ban generated much criticism (amid some praise) and has continued to draw scrutiny even years later.  Whether her move was brilliant or a fool’s errand, one universal lesson to be drawn is that companies need to think critically about whether and to what extent remote work arrangements make good business sense.  This is particularly true as the workforce continues to trend away from traditional employment concepts toward freelancing, consultants, and gig workers.  More and more workers expect, if not demand, flexibility, including the ability to telecommute for at least some portion of their workweek.  With limited exceptions, however, this is privilege not a right.

If your company does provide this perk to some workers, or widely embraces this concept as an essential part of your culture to retain and attract talent, you need to be sure your practices regarding non-traditional workplace arrangements align with your business needs and are not unknowingly subjecting you to legal risk.  To this end, best practices to keep in mind include:

  • Maintain written policies and conduct periodic reviews. The last thing you want is an ambiguous or outdated policy or, worse yet, inconsistent application of your policies among employees.  Ensure that employees are actually working within the limits of the policy.  Make sure your company retains flexibility to modify or terminate the arrangement, or evaluate it on a trial basis.
  • Be aware that telecommuting may be a reasonable accommodation for an employee’s mental or physical disability. This is true even if you ascribe to the Mayer school of thought and do not allow employees to work from home.  As technology continues to evolve, it is becoming increasingly more difficult for employers to convince courts that regular and predictable attendance means the employee must be present at the brick and mortar location.  Accommodations should be distinguished from voluntary arrangements.
  • Make sure you are properly tracking and compensating hourly, non-exempt remote workers for all time worked (including overtime) and they are taking required meal and rest breaks. Also, be clear about scheduling—remote work does not mean that the employee does not have to be available and working during set hours.  Nor does it mean that you alter how you evaluate the employee’s productivity or overall performance.
  • Safeguard confidential and proprietary information and make sure appropriate security protocols are in place. Define who is supplying what equipment, paying for internet fees, providing locked file cabinets, and the like.  A site inspection of the employee’s remote worksite may be prudent.

We continue to work with Oregon employers to navigate successful and legally sound work-from-home arrangements, and can further discuss any practical or compliance challenges you face.

The article was originally published on March 22, 2019, by the Portland Business Journal as part of its How Oregon Works series.

The post Modern Workforce Increasingly Challenges Employers to Offer Telework Option appeared first on World of Employment.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

A little over six years ago, Yahoo! CEO Marissa Mayer issued her edict (well, memo) kiboshing work-from-home arrangements, driving Yahoo! workers back to their desks and sending shock waves that reached far beyond affected employees.  Mayer’s mantra was that in order to be “one Yahoo!,” workers needed to be physically connected in the workplace.  Her ultimatum ground the notion of telecommuting at Yahoo! to a screeching halt:  Get back to the office or don’t let the door hit you on the way out.

With probably more fallout externally than internally, Mayer’s remote work ban generated much criticism (amid some praise) and has continued to draw scrutiny even years later.  Whether her move was brilliant or a fool’s errand, one universal lesson to be drawn is that companies need to think critically about whether and to what extent remote work arrangements make good business sense.  This is particularly true as the workforce continues to trend away from traditional employment concepts toward freelancing, consultants, and gig workers.  More and more workers expect, if not demand, flexibility, including the ability to telecommute for at least some portion of their workweek.  With limited exceptions, however, this is privilege not a right.

If your company does provide this perk to some workers, or widely embraces this concept as an essential part of your culture to retain and attract talent, you need to be sure your practices regarding non-traditional workplace arrangements align with your business needs and are not unknowingly subjecting you to legal risk.  To this end, best practices to keep in mind include:

  • Maintain written policies and conduct periodic reviews. The last thing you want is an ambiguous or outdated policy or, worse yet, inconsistent application of your policies among employees.  Ensure that employees are actually working within the limits of the policy.  Make sure your company retains flexibility to modify or terminate the arrangement, or evaluate it on a trial basis.
  • Be aware that telecommuting may be a reasonable accommodation for an employee’s mental or physical disability. This is true even if you ascribe to the Mayer school of thought and do not allow employees to work from home.  As technology continues to evolve, it is becoming increasingly more difficult for employers to convince courts that regular and predictable attendance means the employee must be present at the brick and mortar location.  Accommodations should be distinguished from voluntary arrangements.
  • Make sure you are properly tracking and compensating hourly, non-exempt remote workers for all time worked (including overtime) and they are taking required meal and rest breaks. Also, be clear about scheduling—remote work does not mean that the employee does not have to be available and working during set hours.  Nor does it mean that you alter how you evaluate the employee’s productivity or overall performance.
  • Safeguard confidential and proprietary information and make sure appropriate security protocols are in place. Define who is supplying what equipment, paying for internet fees, providing locked file cabinets, and the like.  A site inspection of the employee’s remote worksite may be prudent.

We continue to work with Oregon employers to navigate successful and legally sound work-from-home arrangements, and can further discuss any practical or compliance challenges you face.

The article was originally published on March 22, 2019, by the Portland Business Journal as part of its How Oregon Works series.

The post Modern Workforce Increasingly Challenges Employers to Offer Telework Option appeared first on World of Employment.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Effective January 1, 2019, employers that employ five or more employees in California must provide one hour of harassment and abusive conduct prevention training to all nonsupervisory employees, and two hours of such training to supervisory employees. This mandatory training must be provided by January 1, 2020, and once every two years thereafter.

Under the new law, “employee” includes migrant, temporary and seasonal employees. The training must be provided by trainers with knowledge and expertise in the prevention of harassment, discrimination and retaliation. It must cover specific topics, including abusive conduct, as well as harassment based on gender identity, gender expression and sexual orientation.

Now that this training is mandatory, failure to provide it as required will make an employer much more vulnerable to liability should an employee sue in court for sexual harassment. Where unlawful sexual harassment is found, ignoring the training mandates opens up an employer to punitive damages, which are often several times greater than the employee’s compensatory damages.

There may be a shortage of training programs available towards the end of the year as all employers rush to meet the deadline. We encourage you all to engage in a training program early to avoid the last minute scramble and the possible decline of resources.

Stoel Rives has developed a cost-effective training program that includes Spanish-language training. For more information on the training requirements and Stoel Rives’ employee training services, please contact Vida Thomas at (916) 319-4669 or vida.thomas@stoel.com.

The post California Employers: Have You Complied with the New Training Requirements? appeared first on World of Employment.

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

On March 22, the Department of Labor (“DOL”) published a new proposed rule that would make several changes to current overtime law.  The proposed rule, which is not yet in effect, would require that:

  • Employees make at least $679 per week ($35,308 annually) to potentially be exempt from overtime. (The current requirement, which has been in place since 2004, is at least $455 per week or $23,660 annually.)
  • Employers be allowed to use nondiscretionary bonuses and incentive payments such as commissions that are paid at least annually to satisfy up to 10 percent of the salary threshold.
  • “Highly compensated employees” make at least $147,414 per year (compared with $100,000 under current law).
  • Going forward, the DOL commit to periodically reviewing and updating the minimum salary threshold (after a public notice and comment period).

The proposed rule does not propose any changes to the “job duties” test (which, in addition to the salary requirement, requires that employees perform certain primary job duties to be eligible for exempt status).

Interested parties have until May 21, 2019 to submit comments before the rule becomes final.  Even then, final rules can be challenged through litigation.  (You may recall that the Obama administration previously attempted to change the salary threshold from $455 per week to $913 per week, but a federal judge blocked that rule from taking effect.)

There are no specific steps to take with respect to the proposed rule right now.  However, there is no time like the present to review job duties and salaries to make sure your employees are properly classified as exempt and non-exempt.  The cost of addressing misclassification issues on the front end is insignificant compared with the potential costs associated with litigation.

We will continue to keep you updated.

The post Department of Labor Proposes Rule to Make More Employees Eligible for Overtime appeared first on World of Employment.

Read for later

Articles marked as Favorite are saved for later viewing.
close
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Separate tags by commas
To access this feature, please upgrade your account.
Start your free month
Free Preview