The Wait is Over: New I-9 Forms

Posted on March 12, 2013 by Royal LLP

On March 8, 2013, the federal government issued the new version of the 1-9 Form (Employment Eligibility Verification Form), which is used to verify an employee’s eligibility to work in the United States.   Employers may continue to use the old I-9 Form until May 7, 2013. Subsequent to this deadline, employers must use the new I-9 Form, or face potential fine.

The revised form has several new sections, including an updated instructions page; additional data fields (i.e. e-mail address, phone number, and foreign passport information); and an expanded format so that Section 1 (Employee Information and Attestation) takes up the entire first page, and Sections 2 and 3 (Employer Authorization and Reverification) are on the second page.

The updated form is available at www.uscis.gov/i-9. To ensure compliance, employers should review the newly-revised I-9 Form now to ensure they are prepared for this change. If you have any questions about I-9 Form compliance, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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NLRB Scrutinizing Non-Disclosure and Non-Disparagement Provisions

Posted on March 4, 2013 by Royal LLP

It is a common practice for employers to require that employees sign agreements containing non-disclosure and non-disparagement provisions as a condition of employment to protect confidential and proprietary information and to protect the company’s reputation.  Recently, a NLRB Administrative Law Judge (ALJ) found such provisions to be unlawful under the National Labor Relations Act.

In this case, Quicken Loans filed a lawsuit against a former employee shortly after she resigned alleging that she had violated her employment agreement, which included non-disclosure and non-disparagement provisions.  In response to being sued, the employee filed an unfair labor practice charge with the NLRB.

The agreement contained a non-disclosure provision that defined proprietary and confidential information as:  “non-public information relating to or regarding the Company’s business, personnel, customers, operations, or affairs,” which includes “personal information of co-workers, managers, executives, and officers, handbooks, personnel files, personnel information such as home phone numbers, cell phone numbers, addresses, and email addresses.”  Finding this provision to be unlawful, the ALJ concluded that the restrictions would have a chilling effect on employees’ Section 7 rights to discuss the wages and other benefits they received, and the names, wages, benefits, addresses, or telephone numbers of other employees with their co-workers or union representatives.

The agreement also contained a non-disparagement provision that required employees to not “publicly criticize, ridicule, disparage or defame the Company or its products, services, and policies, directors, officers, shareholders, or employees . . . through any written or oral statement or image.”  The ALJ similarly found this provision to be unlawful.  The ALJ concluded that the restrictions would have a chilling effect on employees’ Section 7 rights to criticize their employers.

It should come as no surprise to hear that the National Labor Relations Board is continuing to scrutinize the employment practices of non-unionized employers.  This case is yet another illustration of the NLRB’s expanding reach into the non-unionized workplace.  In light of this decision, employers would be wise to review their employment agreements containing non-disclosure and non-disparagement provisions and consult with their employment counsel to ensure these provisions are tailored to survive NLRB scrutiny.

If you have any questions about non-disclosure or non-disparagement agreements or your obligations under the NLRA, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Insubordination or ADA-Protected Conduct One Too Many Times?

Posted on February 20, 2013 by Royal LLP

Katherine Kelley, a nurse at Correctional Medical Services, Inc. (CMS), was terminated for insubordination after refusing an assignment she felt she was not physically able to do while recovering from a serious injury.  Kelley subsequently filed a claim under the Americans with Disabilities Act (ADA), alleging that she was terminated in retaliation for requesting reasonable accommodations for her disability.

Insubordination, of course, is a valid reason for termination.  However, in this case, the First Circuit Court of Appeals, overturning the lower court’s decision granting the employer’s motion for summary judgment, found that the incident leading directly to the employee’s termination “may reasonably be viewed as the culmination of [a] history of disability-based conflict . . . .  Under these circumstances, a reasonable factfinder could conclude that [the employee’s] refusal to obey an instruction of [her supervisor] served as a convenient pretext for eliminating an employee who had engaged in ADA-protected conduct one too many times.”

Kelley shattered her pelvis in a horseback riding accident and took a leave of absence for six weeks.  Before and after she returned to work, Kelley had several disagreements with her supervisor regarding her need for accommodations.   The challenges from her supervisor included:

  • Suggesting that she would not be permitted to return from medical leave unless she could come back full time;
  • Trying to prevent her from working until she returned with a properly formatted doctor’s note on the appropriate CMS form describing the extent of her injuries;
  • Accusing her of lying about having a fractured pelvis;
  • Suggesting that the extent of her immobility should be greater than what it was; and
  • Prohibiting her from using a cane until she returned with a doctor’s note stating that it was required to aid in mobility.

As the court noted, this history of disagreement over the need for accommodation occurred before the insubordination that led to Kelley’s termination.   The culmination of this conflict was over an assignment that Kelley felt she was not physically able to do.   Kelley suggested switching assignments with another nurse, but ultimately she was escorted out of the building and fired for insubordination the next day.

The ADA does not give employees a free pass to engage in bad behavior (i.e., insubordination).  However, when determining whether to discipline or discharge an employee who has requested a reasonable accommodation under the ADA, employers should evaluate the risk of a retaliation claim based on this protected activity.  And important to note, in this case, Kelley was terminated for insubordination that was directly tied to her disability.  This case also serves as a reminder of how important it is for employers to train their supervisors about their responsibilities under the ADA.

If you have any questions about handling disciplinary action or termination of employees who have requested reasonable accommodations under the ADA or about what your obligations are under the ADA, please contact any of the attorneys at Royal LLP at (413) 586-2288.

 

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New FMLA Regulations Take Effect on March 8

Posted on February 16, 2013 by Royal LLP

The FMLA turned 20 years old this month and, with this birthday, comes new regulations pertaining to it, which the United States Department of Labor issued last week and take effect on March 8, 2013.  In celebration of the FMLA’s 20th birthday, let us help you to update and ensure that your FMLA policy now includes the new FMLA changes.

The new regulations add, modify or clarify several  of the provisions of the original law such as eligibility requirements for employees returning from National Guard or Reserves duty; expansion of time under the qualifying exigency leave provision; expansion of military caregiver leave to include covered veterans; the addition of a  new parental care exigency leave, which allows for making arrangements for the care of parents of military service members; and allowance of leave for caregiving necessitated by the aggravation of pre-existing injuries or illnesses of covered military members in the line of duty.  The regulations now provide that certification from any health care provider is sufficient to support the request for such leave.

The regulations also include several changes to both employer and employee notice requirements as well as the amount of time the employer has to notify the employee of his or her FMLA eligibility.  A modification of the prior rule requires an employee, who is seeking additional leave for the same condition necessitating FMLA leave to begin with, to notify the employer of the qualifying reason for the leave.  Where the need for leave is unforeseeable, the employee must give notice of the need for FMLA leave the same day s/he learns of the need for the leave, or the next business day.  The employee’s failure to comply with this requirement may result in delay or denial of the leave unless the reason for the failure is due to unusual circumstances. 

Employers must treat records and documents containing family medical history or genetic information obtained for FMLA purposes as strictly confidential pursuant to the requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA).  Such records must be maintained in separate files from the individual’s personnel file and disclosure of this information is allowed only in certain limited circumstances.  The new regulations also provide clarification regarding the calculation of intermittent leave.

Employers are strongly urged to make sure that all of the modifications and additions to the FMLA regulations are implemented by March 8, 2013, which includes updating your existing FMLA policy to reflect these changes, as appropriate. 

Royal LLP will be holding informational roundtable seminars in March to discuss these changes and how they impact you.  Please visit our website for the specific dates these seminars will be held.  If you have any questions, or if you need assistance in updating your policy, or in implementing these new changes in your ogranization, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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When Workplace Romance Goes Wrong

Posted on February 6, 2013 by Royal LLP

After working together for a number of years, Dr. Melissa Gerald, a scientist previously employed by the University of Puerto Rico, and Dr. Edmundo Kraiselburd, her supervisor, had a week-long sexual affair at an out-of-town conference.  When they returned home, embarrassed by the fling, Gerald rebuffed Kraiselburd’s efforts to pursue the relationship.  A couple years later, after a work dinner, Kraiselburd propositioned Gerald for sex, which Gerald refused.  The following month, Kraiselburd grabbed Gerald’s breast and made sexually suggestive grunting noises.  Gerald was disgusted but said nothing for fear of losing her job.  A week later, Kraiselburd said something to the effect of, “What will it take for you to f—k me?”

Gerald filed a sexual harassment complaint with her employer.  During the investigation into her allegations, co-workers reported that Gerald engaged in off-color banter of a sexual nature with Kraiselburd.  The investigator did not find Gerald credible and found that, to the extent any incidents did take place, jokes and comments of a sexual nature were common for Gerald and Kraiselburd and therefore not unwelcome or severe and offensive enough to alter Gerald’s work conditions.  Unsurprisingly, Gerald quit her job and filed a Title VII claim against the University and her supervisor alleging sexual harassment, retaliation, and constructive discharge.

The First Circuit Court of Appeals, overturning a lower court’s decision granting summary judgment on Gerald’s sexual harassment claim, stated:  “We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work. . . .  There is no evidence that Gerald encouraged or invited Kraiselburd to grab her breasts and she indicated during the investigation that she was disgusted and bothered by him doing so.”  Furthermore, the court found that the incident in which Kraiselburd grabbed Gerald’s breasts and made sexually suggestive noises “comfortably qualifies as egregious” enough to show a hostile work environment.

This decision should serve as a reminder to employers that all complaints of sexual harassment should be taken seriously.  And employers should be mindful that a past consensual sexual relationship or engaging in sexual banter does not preclude the possibility of unwelcome sexual harassment.  Also, a single act of harassment, if the court views as egregious enough, may suffice to establish a hostile work environment.

If you have any questions about what preventative measures you can take to decrease your risk of sexual harassment claims or related to conducting investigations into allegations of sexual harassment, please contact any of the attorneys at Royal at (413) 586-2288.

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Statement by NLRB Chairman on Recess Appointment Ruling

Posted on February 1, 2013 by Royal LLP

In response to the Court of Appeals for the D.C. Circuit decision that President Obama’s recess appointments were invalid, NLRB Chairman Mark Gaston Pearce issued the following statement:

“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld.  It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

The Board clearly plans to continue to issue decisions, despite the possibility that they later may be deemed invalid.

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Federal Appeals Court Ruling Calls Recent NLRB Decisions into Question

Posted on January 28, 2013 by Royal LLP

What if the decisions of the NLRB over the last year were suddenly deemed invalid?  While seemingly unlikely, a federal appeals court ruled last Friday that President Obama’s recess appointments, which date back to January 2012, were unconstitutional.  In Canning v. NLRB, 2013 WL 276024 (D.C. 2013), the court found that because the President violated the Constitution when he made three recess appointments to the NLRB, the NLRB had no authority to find that the employer, Noel Canning, violated the National Labor Relations Act by purportedly refusing to reduce to writing and execute a collective bargaining agreement with the union.

In other words, the NLRB had no quorum at the time it made this ruling and, therefore, had no authority to make a ruling or take any action.  Indeed, in order for the NLRB to take action, it must have a quorum of three members.  Here, if the President’s recess appointments are invalid, it would have left the NLRB for over one year with only one validly appointed member, which obviously is two members short of the quorum needed for taking action.

The administration is expected to appeal this decision to the United States Supreme Court.  If this decision is upheld, it would invalidate all decisions of the NLRB since January 3, 2012.  In addition, unless and until the U.S. Supreme Court decides differently, management-side labor lawyers will surely argue that all of these decisions have no effect.

If you have any questions about this decision, please contact any of the attorneys at Royal at (413) 586-2288.

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BRRRR- BABY IT’S COLD OUTSIDE

Posted on January 17, 2013 by Royal LLP

Yet another potentially “chilling” effect.

Quicken Loans, Inc.’s mortgage bankers are required to sign an employment agreement containing provisions prohibiting  them from disclosing non-public information regarding the company’s business or personnel to any person, business or entity. This includes information such as personnel lists, addresses and phone numbers of co-workers. The agreement also includes a non-disparagement provision which prohibits employees from publicly disparaging, criticizing or defaming the company or any of its products, services, policies, directors or officers.

Here Comes the Judge

In a recent decision by NLRB Administrative Law Judge Joel Biblowitz, See Quicken Loans, Inc. , Case No. 28-CA-75857, the Judge ruled that the two above referenced provisions were overly broad  (sound familiar??) and unlawfully hindered employees’ rights to engage in protected concerted activity.

In arriving at his decision, the Judge noted that while the line between lawful and unlawful restrictions is “very thin” and somewhat blurred, there was no doubt, in this case, that any employee reading these provisions could “reasonably” construe them as restricting his/her rights to engage in protected concerted activities as provided for in Section 7 of the NLRA.

How Can That Be?

Well, regarding the sharing of proprietary information prohibition, the Judge determined that the provision would require employees to refrain from discussing their wages and benefits with not only their union representatives but co-workers as well. That’s a “No, no” said the Judge. The Judge further determined  that despite the fact that employees may, in a somewhat limited fashion, criticize their employer, an employee could reasonably conclude that the non-disparagement provision in this agreement totally curtailed his right to criticize his employer.

“That’s Nice, But No Cigars”

The company’s argument that no employee had ever been disciplined for violating the policy apparently did not carry much weight with the Judge, who went on to recommend that the company be ordered to post a notice and notify all of its mortgage bankers nationwide that the provisions had been rescinded.

What’s In It For You?

You may be tired of hearing it – but given the rate at which these decisions are being delivered,  employers need to have carefully drafted employment agreements, policies and procedures. A word to the wise!

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WHAT TO SAVE & WHAT TO SHRED: STATE AND FEDERAL RECORDKEEPING REQUIREMENTS

Posted on January 15, 2013 by Royal LLP

Documents . . . documents . . . and more documents.  Now that it is the new year, it is a good time to be thinking about the documents you must hang on to versus the ones you can purge; however, because there are so many documents to keep track of, it can be difficult to know what you must save and for how long and what you can shred.  Indeed, the legal requirements for recordkeeping and retention of employment related records are confusing.  This is because there are a variety of state and federal laws governing retention related to job applications, CORI records, payroll records, wage and hour records, I-9 forms, personnel records, employment benefits, family medical leave records, affirmative action plans, tax records, and safety records.

The importance of this one part of the seemingly endless human resources responsibilities cannot be overstressed.  And there is no better time for a review of your recordkeeping practices than the beginning of a new year to ensure compliance in the event of an unanticipated audit by a state or federal agency.

Royal LLP will be presenting an informational workshop that will provide an overview of state and federal recordkeeping requirements on February 15, 2013 in Springfield and on  February 22, 2013 in Northampton.  To register, please contact Ann-Marie Marcil at amarcil@royalllp.com.  For additional information about this seminar or other seminars, please visit our website under What’s New/Upcoming Seminars.  If you have a specific question about your recordkeeping compliance, contact any attorney at Royal LLP at (413) 586-2288.

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WHAT LESSONS CAN BE LEARNED FROM THE RECENT NHL LOCKOUT?

Posted on January 7, 2013 by Royal LLP

The recent National Hockey League (NHL) lockout has ended and a deal has been reached, giving fans a chance to see some action, and giving business owners a chance to learn some important lessons regarding labor disputes.

1.  Don’t bargain in the media

Why?  Firstly, you cannot control how the media will portray you.  Trying your case so to speak in the “court of public opinion” is generally not a good idea.  Secondly, bargaining in the media only has the effect of causing the parties to become entrenched in their position which in turn may result in more serious reactions which, in the instant case resulted in the NHL engaging early on in a lockout.

Bottom line:  Airing the parties’ laundry in public is likely to have a negative impact not only on the parties involved but on fans, customers, and suppliers as well. Both parties should weigh the costs, both economic and otherwise, before resorting to such tactics.

2.   Keep the dialogue going.

Why?  It is only through continuing dialogue that can lead to a resolution and agreement.  No communication = no negotiations = no resolution.

3.  Do a cost-benefit analysis.

Why?  Each party will have the opportunity to decide – what’s dispensable and what’s worth continuing to argue about. If nothing else, it allows for the possibility of more give and take during the course of the negotiations and allows employers to determine which of the terms being negotiated are the most cost effective to pursue in the bargaining process.

4.  Retain an attorney skilled in labor disputes

Why?  An experienced attorney can be very effective in advising the company as to the “do’s” and “don’ts” related to the collective bargaining process. A labor attorney may also recommend and encourage the use of an experienced mediator to guide the discussions between the parties, which, as occurred in this case, ended in a settlement.

Labor disputes are costly, time-consuming, and can negatively impact all parties involved, including getting you to lose focus on what is most important; namely, further growing your business.  Hopefully, heeding the above suggestions can lessen any such impact on your company’s business.

If you have any questions relative to your labor contracts or issues, contact any attorney at Royal LLP at (413) 586-2288.

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