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Mandatory E-Verify????

Immigration issues continue to be a hot topic in Washington.  As immigration reform questions circulate through Congress, particularly surrounding the DACA/Dreamer issue, a bill to make E-Verify mandatory for all employers arrived on the House floor.  The bill would phase in the required use of E-Verify over a two-year period.  It is still too early to tell if the bill will survive, but its introduction shows a continued emphasis on border control by the Republican in Congress and the Trump Administration.  Stay tuned for further updates. 

Trump Administration Makes Significant Change to Immigration Renewal Filings

USCIS issued a memorandum on October 23rd that rescinded prior guidance established by the Bush and Obama administrations related to extensions of temporary work visas.  The prior guidance directed USCIS case officers to approve extension requests so long as the main facts of the extension were in line with the original filing.  The new guidance tosses out this presumption in favor of approving those extension requests and indicates that all filings will be subject to the same scrutiny as the initial filing.  In essence, the Trump Administration does not want to give credence to any previously approved filings and will review them with fresh eyes upon the request for an extension. 

The policy memorandum is yet another indication of the Trump Administration's negative viewpoint with respect to the use of foreign labor.  In keeping with the theme of the Buy American Hire American order issued by President Trump, this policy memorandum clears the way for USCIS case officers to reject extension requests in hundreds of thousands of previously approved work visas.  The impact of the memorandum is hard to predict at this point, but does point to a continued tightening and restricting of employer access to work visas for foreign workers. 

Happy Halloween!
October for many means the changing of the leaves, digging those cozy sweaters out of the back of the closet, and cracking open the windows at night. For some, it’s a time for hot chocolate and hayrides, but for most, October means one thing . . . HALLOWEEN! It’s all about pumpkin carving, costume shopping, and figuring out which house in the neighborhood is going to have the mother-load of sugary goodness and which houses are going to be handing out (milk) duds.
For employers October and Halloween often present a witch’s brew of issues that unfortunately aren’t make-believe. From something as simple as deciding whether to allow costumes on Halloween to beginning to prepare for the New Year, now is a really good time to be proactively thinking about important employment-related issues. Unlike Halloween, in the employment world you can’t just turn your porch lights off and wait for morning so it’s always a good idea to address potential issues before they reach your door (bell). Like many homeowners on Halloween, the employers that are least prepared often are the ones who end up dishing out the most.

So don’t be a Headless Horseman when it comes to tackling some of these spooky and startling issues and instead, trick or treat yo’self to a few of our favorite Halloween articles from recent memory. If these articles get you thinking about some of the potential employment skeletons in your closet, it might be a good idea to get in touch with your      Continue Reading...

Bad Haircut Leads To Unfair Labor Practice

What's the difference between a good haircut and a bad one? Two weeks. That's funny. But one employer wasn't laughing when an employee's botched haircut started a chain of events that resulted in a finding that the company violated the National Labor Relations Act (NLRA). 

Having a bad hair day
Nicole Wright-Gore worked for White Oak Manor, a long-term care facility. Embarrassed by a “terrible haircut,” she began wearing a hat to work. After a week, she was told the hat violated the dress code and she needed to remove it or go home. She protested that other employees were allowed to wear hats, refused to remove her hat, and left for the day. She returned the next day, which, as fate would have it, was Halloween. Employees were allowed to wear costumes. Wright-Gore dressed as an auto-racing fan, and her costume included -- you guessed it -- a hat. She was told to remove the hat, which she did, and was written up for insubordination.
Over the next few days, Wright-Gore observed that some employees were wearing hats and displaying tattoos in violation of the dress code without consequence. She began talking to other employees to enlist their support for what she felt was unequal enforcement of the policy. To bolster her case, she used her cell phone to take pictures of other employees who were dressed contrary to the policy.
One of the employees complained to management that Wright-Gore had photographed him without permission. Alas, the company had a policy against taking      Continue Reading...
HIPAA Horror: Obtaining Employee Medical Information
October is the time for ghosts, ghouls, and goblins. To the uninformed, the Health Insurance Portability and Accountability Act (HIPAA) may be just as harrowing as those Halloween harbingers. If you've attempted to obtain employee medical information from a health care provider, the provider may have required that you provide an authorization signed by the employee as a precondition to any disclosure. In this article, we'll try to demystify and reduce the fear factor of those requirements. We'll summarize the provisions of the HIPAA privacy rule concerning disclosures to employers, which should help you understand why providers are hesitant in disclosing requested information to you.
HIPAA basics
HIPAA prohibits “covered entities,” including most health care providers, from disclosing protected health information without a written authorization from the patient unless a specific provision within the regulation permits such disclosure. “Protected health information” is information that there is a reasonable basis to believe can be used to identify an individual and relates to the past, present, or future physical or mental condition of the individual, the provision of health care to the individual, or the past, present, or future payment for the provision of health care to the individual.
Work-related medical surveillance and work-related injury
The HIPAA privacy rule permits a health care provider to disclose information to an employer concerning an employee without the employee's authorization in very limited circumstances. Specifically, a provider may disclose information concerning workplace medical surveillance and work-related illness or injuries only if the following conditions are met.
First, the health care      Continue Reading...
Tricks at Work Are No Treat for Employers

Halloween is a lot of fun for both kids and adults.  When else can we wear inappropriate costumes, gorge on unlimited candy, and create a “Walking Dead” display in our front yard?  But when the spectral mist of Halloween creeps into the workplace, things can get really scary. Here are some real-life Halloween work-place mishaps that left employers haunted:

  • A retail store put up a notice encouraging employees to come to work in costume on Halloween.  About half participated, while the other half showed up in their regular clothes.  Donna Meraz was one of the employees who didn’t wear a costume, claiming that doing so conflicted with her religious beliefs.  Later that year when Meraz’s work hours were reduced, she sued the company alleging she was retaliated against for her religious beliefs after refusing to work in costume on Halloween.  The court gave the employer a treat, dismissing Meraz’s retaliation claim. 
  • An employee brought a retaliation claim against her employer, alleging she was fired after complaining about a male supervisor who constantly made suggestive remarks about female employees.  On one occasion, a woman wore a cat costume to work on Halloween and the male supervisor allegedly said that he “liked her tail.”  Unfortunately, the male supervisor got up to other hijinks like this and the court ordered the case to a jury. 
  • Several black and Hispanic employees of a city parks department brought class action      Continue Reading...
Exorcise ‘Ghost Policies’ From Your Employee Handbook
Is your employee handbook or policy manual haunted by shadowy policies and provisions that are treated as though they aren't even there? “Ghost policies” can creep into a handbook in a number of ways. They may be relics that once lived useful lives--the legacies of long-departed HR managers--but their original purpose is now unknown or ignored. They may be recent additions that never caught on, or they may simply be the result of errors (not yours, of course).
Be afraid--be very afraid--of ghost policies. If left floating in your handbook, they can lead to legal claims and liability.
Dord: a ghost word
What is “dord”? According to Webster's New International Dictionary, Second Edition, it's a noun that means density as used in physics and chemistry. But it was never a real word. Dord is what lexicographers call a “ghost word,” a word that comes into use or is published because of a misinterpretation, misreading, typographical or linguistic confusion, or other error.
So how did the nonexistent word dord end up in the dictionary? In the first edition of Webster's, entries for abbreviations and words were intermingled. But in the second edition, abbreviations were moved to a separate section in the back of the book. An editor created a card with the notation “D or d, cond/density,” which was meant to indicate that the new edition should include “D” and “d” as abbreviations for density. The card mistakenly ended up in the word pile, and the phrase “D or d” was misinterpreted as “dord.” A      Continue Reading...
Treat for Employers: Trump Administration Ends Obama-Era Equal Pay Rule
President Trump has stopped an Obama-era rule requiring large companies to report how much they pay workers by race and gender. The goal of the rule was to help in closing the wage gap between men and women, and between different racial groups, by providing additional transparency to the issue. The Trump administration claims it halted the rule on the belief that it would not work as planned.
The rule required private employers with over 100 employees, and federal contractors with 50 or more employees, to disclose wage and pay data to the Equal Employment Opportunity Commission. Under the rule, the EEOC would have used the data in investigating complaints regarding disparities in pay. The data would not have been made public; however, the EEOC would have released the aggregate data about pay in various industries, broken down by race and gender.
Some critics of the rule argued that it was not precise enough to be useful. Supporters of the rule disagreed, arguing that employers that monitor themselves have smaller pay gaps.

For Kansas employers with over 100 employees, this move means that you will not have to provide this data to the EEOC starting in 2018, as the rule had not gone into effect before its suspension.

Debate Continues on Whether Title VII Prohibits Discrimination Based on Sexual Orientation

The federal courts continue to wrestle with whether sexual orientation is protected by Title VII – the law that prohibits discrimination based on sex. Although most circuit courts of appeal (including the 10th Circuit that covers Kansas) hold that Title VII does not cover sexual orientation, recent court decisions have brought the debate to the forefront.

We told you in a post last August that the 7th Circuit Court of Appeals had rejected the EEOC’s position that discrimination based on sexual orientation violates Title VII.  That Court, however, later vacated the earlier decision, and granted a rehearing en banc.  Then, on April 4, 2017, the Court reversed course and ruled that discrimination based on sexual orientation is indeed a form of unlawful sex discrimination. 
In late March, the 2nd Circuit Court of Appeals reached the opposite result and ruled that under its existing precedent, Title VII does not prohibit discrimination based on sexual orientation.  In a separate opinion, two of the three judges urged the entire Court to reexamine its earlier precedents in light of the “evolving legal landscape.”   
And in early March, the 11th Circuit Court of Appeals held that discrimination based on sexual orientation was not sex discrimination.  A dissenting judge concluded, however, that “it [was] time that the court recognized that Title VII prohibits discrimination based on an employee’s sexual orientation.”  

These conflicting decisions are not binding on other federal circuits.  But they signal that the Supreme Court may be called on in the near future to settle the debate. 

     Continue Reading...
The Details are in the Weed

With the expansion of legalized recreational marijuana in several states and localities, there will continue to be discrepancies between legal usage of a product and the consequences for that usage under employer policies for drug testing.  In some cases, this tension may come from the use of other substances that are not exactly marijuana. 

For example, an employee may test positive for the use of marijuana in cases where they are ingesting products containing cannabis.  These products can include items like hemp oil as well as other edible type items.  If an employee has sufficient levels of a controlled substance in their system, a positive test result can occur.  Unlike other situations where a medical review officer (MRO) can justify the positive result, the scenario with hemp and other cannabis related products is not justifiable.  As a result, employers may see more cases of positive drug test results due to what employees perceive to be acceptable uses of products.

The inability of an MRO to excuse a positive result triggered by hemp oil may be something employers want to address with employees to avoid these difficult situations.  As legalized recreational marijuana becomes more common and the uses of various cannabis related products grows, these situations are more likely to become more commonplace.

New World Order for Government Contractors

On March 27, 2017, President Trump took two actions to roll back a controversial Obama-era requirement for government contractors. 

First, the President signed an Executive Order revoking President Obama’s Fair Pay and Safe Workplaces Executive Order (Executive Order 13673, as amended by Executive Orders 13673 and 13738). This controversial executive order had required, among other things, federal contractors to (1) disclose prior violations of federal and state employment and labor laws in solicitations for certain government contracts and every six months during the existence of the contract (the “blacklisting” order) and (2) provide certain pay-related information to employees and independent contractors (the “paycheck transparency” order).  
In conjunction with that Executive Order, the President also signed into law H.J. Resolution 37. This measure—authorized by the rarely used Congressional Review Act, which allows Congress to review and overrule a regulation adopted by a government agency within the last 60 legislative days (in this case dating back to May 2016), prohibiting the agency from issuing in the future a rule that is substantially the same—overruled the final agency regulations designed to implement the Fair Pay and Safe Workplaces Executive Order. A federal judge already had issued a temporary restraining order last fall, blocking implementation of the blacklisting portion of the order, but allowing the paycheck transparency rules to take effect. This resolution now negates the entire set of regulations and bars the government from adopting substantially the same regulations again in the future, unless expressly authorized by an act of Congress.
This action marks President      Continue Reading...
Trump Administration Reverses OSHA Record-Keeping Rule Change Implemented by President Obama

The OSHA administrative change referenced in my blog post of December 23, 2016, has been overturned by the Trump Administration's approval of a joint congressional resolution.  As you may recall, OSHA established a rule permitting the issuance of citations to employers for record-keeping violations for up to five years from the point of the error or violation.  The Trump Administration's approval of the joint congressional resolution returns the look back period for violations to six months. 

Click here to review the prior blog post from December of 2016.

H-1B Filing Season Coming Up

The annual H-1B visa filing cycle is coming right up.  Employers will be able to file H-1B applications for the fiscal year 2018 cap/quota period after April 1, 2017.  USCIS will begin taking applications on April 3, 2017, and if the cap is reached during that first week, USCIS will conduct a lottery to determine which applications will be accepted under the cap. 

For those employers looking to obtain an H-1B visa for a worker, now is the time to get those applications ready to submit for the upcoming lottery. 


USCIS Premium Processing Suspended

USCIS has announced a suspension of the premium processing program for H-1B visa applications starting on April 3, 2017.  The premium program is a means by which applicants for H-1B visas can shorten the standard processing time of approximately six months to just a few weeks.  The program is funded by the additional filing fees paid with the application.  With the upcoming cap lottery process and the current significant backlog in pending H-1B applications, USCIS is temporarily halting the acceptance of applications filed for premium processing.  This suspension is expected to last a few months, but the actual length is hard to project.  Stay tuned as USCIS works through its annual H-1B visa lottery process as changes to the premium processing suspension are likely.

EEOC Wellness Regulations Survive AARP Challenge

A federal court in Washington, D.C. has declined to issue an order that would have halted implementation of the EEOC’s wellness plan regulations under the ADA and GINA. The regulations had been challenged by AARP on the grounds that they failed to adequately protect workers’ rights. However, the court concluded there was no risk of "irreparable harm" to workers in allowing the regulations to remain on the books. This means the regulations remain in force and will apply as scheduled. 

The EEOC’s regulations are generally applicable to wellness programs beginning with the 2017 plan year. The regulations limit the incentives that employers may offer in connection with a wellness program that involves a medical examination or disability-related inquiry. Most wellness programs that involve a health risk assessment or biometric screening are covered. The incentive cannot exceed 30% of the cost of employee-only coverage under the related health plan -- or twice that amount in the case of plans that offer incentives to both employees and their spouses.The regulations also impose notice and confidentiality requirements, in addition to limiting the amount of incentives.

The EEOC’s rules apply in addition to other wellness plan rules under HIPAA and the ACA, with sometimes inconsistent results. For example:

  • Under the HIPAA and ACA regulations, there is no limit on the amount of the incentive that can be offered in a “participation only” wellness program involving completion of a health risk assessment and biometric screening, but the same wellness program generally is subject to      Continue Reading...

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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