HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

Without a Box to Stand on: States May Lack Right to Fight EEOC Criminal History Guidance After All

Posted in Ban the Box

Overview

Criminal Background check 15244698_LargeAs our readers are likely aware, ordinances have been adopted in recent years in numerous jurisdictions limiting an employer’s ability to inquire about a job applicant’s criminal background. These so-called  “Ban the Box” ordinances prohibit employers from conducting criminal background checks until after giving applicants conditional offers of hire. On Friday, September 23, 2016, the Fifth Circuit weighed in on the matter when it vacated its June 27, 2016 opinion that granted Texas standing to challenge the Equal Employment Opportunity Commission’s enforcement guidance on the timing and consideration of criminal background checks in the hiring process. The appellate panel remanded to the Northern District of Texas to consider whether the recent U.S. Supreme Court decision in U.S. Army Corps of Engineers v. Hawkes Co. dictates otherwise. A copy of the appellate panel’s decision may be viewed here. Continue Reading

One Expensive Bottle of Orange Juice: Denial of a $1.69 Orange Juice Costs Dollar General $277, 565 in Back Pay and Damages

Posted in Americans with Disabilities Act, Discrimination, Equal Employment Opportunity Commission, Workplace Policies

On September 16, 2016, a Tennessee jury awarded Linda Atkins, a former Dolgencorp LLC (“Dollar General” or the “Company”) Sales Associate, $277,565 in back pay and compensatory damages after being fired for drinking orange juice prior to paying the $1.69 cost to prevent a diabetic episode. Continue Reading

EEOC Supports NLRB’s Joint-Employer Standard before DC Circ.

Posted in Equal Employment Opportunity Commission

On September 14, 2016 the Equal Employment Opportunity Commission (“EEOC”) filed an amicus brief in the D.C. Circuit expressing support for the National Labor Relations Board’s (“NLRB”) loosened standard of a joint employer. Under this loosened standard, a joint-employer relationship can exist if an employer exerted “indirect control” over the terms and conditions of employment. The NLRB’s previous joint-employer standard required a business to have “direct and immediate” control over the terms and conditions of employment. However, as explained previously in HR Legalist, this standard was expanded in Browning-Ferris when the NLRB concluded that BFI and a staffing agency were joint employers of workers at a BFI-owned recycling facility in Milpitas, California. Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015). Continue Reading

US DOL AND PA DOL PARTNER TO PREVENT EMPLOYEE MISCLASSIFICATION

Posted in Fair Labor Standards Act, Wage & Hour

iStock_000067070143_FullOn August 4, 2016, the U.S. Department of Labor (“U.S. DOL”) and the Pennsylvania Department of Labor and Industry (“PA DOL”) signed a memorandum of understanding  (MOU) to coordinate efforts, by sharing information and conducting joint investigations on employers who may be violating one or more of the state or federal wage and hour laws that each agency has been charged with enforcing.  (The MOU can be accessed here https://www.dol.gov/whd/workers/MOU/pa.pdf)One area of common interest to both agencies has been the misclassification of employees as independent contractors.  The MOU is part of the U.S. DOL’s Misclassification Initiative, the stated goal of which is to “combat employee misclassification and to ensure that workers get the wages, benefits, and protections to which they are entitled.” Continue Reading

NLRB Loses Its Lunch Over Chipotle’s Social Media Policy

Posted in NLRB, Workplace Policies

Burrito PlateOn August 18, 2016, the National Labor Relations Board (NLRB) affirmed an administrative law judge’s (ALJ) March 14, 2016 ruling that Chipotle’s “Social Media Code of Conduct” violated the National Labor Relations Act (NLRA).

By way of background, Chipotle terminated associate James Kennedy in February of 2015 shortly after he made several tweets regarding employee working conditions and wages. During the same time period, Kennedy circulated a petition amongst his coworkers addressing management’s purported denial of break periods. The Pennsylvania Workers Organizing Committee subsequently filed two unfair labor practice charges against Chipotle asserting that Chipotle maintained an unlawful social media policy, enforced unlawful work rules, prohibited Kennedy from engaging in protected concerted activity, and terminated Kennedy because he engaged in protected activity. Continue Reading

NJ Minimum Wage Increase on Hold – For Now

Posted in New Jersey Law, Wage & Hour

As predicted by HR Legalist in May, New Jersey Governor Chris Christie has vetoed a democratic-backed measure that would have gradually increased New Jersey’s minimum wage from $8.38 to $15 per hour over a four-year period.  In today’s veto message from a grocery store in Pennington, NJ, and in a press release, the Governor paraphrased many concerns previously raised by the business community in opposition to the bill, including increased supply and labor costs, potential price increases or layoffs, and pressure on businesses to leave New Jersey. Continue Reading

International Entrepreneurs Receive Welcome News from USCIS

Posted in Immigration

The U.S. Citizenship and Immigration Service (USCIS) has announced a proposal to grant international entrepreneurs temporary admission to the United States in order to start or scale their businesses here.  On Friday, August 26, 2016, USCIS Director, Leon Rodriguez, stated that “America’s economy has long benefitted from the contributions of immigrant entrepreneurs, from Main Street to Silicon Valley,” said Director León Rodríguez. “This proposed rule, when finalized, will help our economy grow by expanding immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment and generating revenue in the U.S.” Continue Reading

New Blanket L Form Reflects Heightened Scrutiny of Outsourcing Companies

Posted in Immigration

In recent years the L-1 Intra-Company transfer visa program has come under scrutiny. Critics of the program, which allows a multinational company to transfer an executive, manager, or worker with “special knowledge” from a foreign affiliate to one of its U.S. offices, complain that the program has caused the displacement of American workers and is used as a “job shop” to transfer workers to third party entities in violation of U.S. employment law. In a partial attempt to cut down on abuse and heighten government scrutiny, the U.S. Citizenship and Immigration Service (USCIS) has introduced a revised version of Form I-129S, which is used when seeking an L-1 visa under the Blanket L program. Continue Reading

The Rio Olympics and the Zika Virus: Guidance for Employers

Posted in OSHA, Workplace Policies

The Olympics in Rio have been a huge success for American athletes, but the games have also brought some hazards.  U.S. Swimmer, Ryan Lochte, was mugged at gunpoint and other athletes have dealt with any number of gastro-intestinal problems associated with travel to tropical climates.  Among the more frightening hazards is the Zika virus, which can cause major concerns, especially for pregnant women.

In addition, Zika virus has officially spread to the United States, with at least 30 cases reported in Miami, and is spreading between states as health officials in Texas announced Monday that a resident contracted Zika in Florida and brought it home.  In this week’s blog, HRLegalist addresses the Zika virus and its implications regarding travel for employers. Continue Reading

DHS Announces Changes to Benefit Undocumented Immigrants

Posted in Immigration

On July 29, 2016 the Department of Homeland Security announced a final rule that expands eligibility or a provisional waiver of unlawful presence, (‘‘provisional waiver’’).  For readers who are unfamiliar with the provisional waiver, here’s a brief summary of a very complicated process and the modifications announced by DHS: Continue Reading