Category Archives: Montana

April 3, 2017

Supreme Court Confirms That EEOC Subpoena Enforcement Decisions Must Be Reviewed Under Abuse of Discretion Standard

By Mark Wiletsky

When reviewing a district court’s decision on whether to enforce or quash a subpoena issued by the Equal Employment Opportunity Commission (EEOC), appellate courts should determine if the district court abused its discretion, rather than conducting a new review of the subpoena enforcement, according to the U.S. Supreme Court. All eight justices agreed that the proper standard of review of an EEOC subpoena enforcement decision is abuse of discretion, not de novo review. McLane Co., Inc. v. EEOC, 581 U.S. ___ (2017).

EEOC Subpoena Sought “Pedigree Information”

In the case before the Court, the EEOC was investigating a gender discrimination charge filed by a female distribution center employee named Damiana Ochoa. Ochoa had worked for eight years as a cigarette selector which required her to lift, pack, and move large bins of products. After Ochoa took three months of maternity leave, her employer required that she undergo a physical evaluation that tested her range of motion, resistance, and speed. The company required such tests of new employees as well as all those returning from medical leave. Despite attempting to pass the physical evaluation three times, Ochoa failed. The company fired her.

Ochoa filed a discrimination charge alleging, among other things, that she had been terminated on the basis of her gender. As part of its investigation, the EEOC asked the company to provide the agency with information about the physical evaluation test and individuals who had been asked to take the test. The company provided a list of anonymous employees who had been evaluated, providing each individual’s gender, role at the company, reason for the test, and evaluation score. The company refused, however, to provide what it called “pedigree information,” including the individual’s name, social security number, last known address, and telephone number.

When the EEOC learned that the company used its physical evaluation nationwide, the EEOC expanded the scope of its investigation, asking for information not only on gender but on potential age discrimination, and not only for the Arizona division where Ochoa worked but also for all of the company’s grocery divisions nationwide. The EEOC issued subpoenas requesting pedigree information related to its expanded investigation. The company refused to comply, so the EEOC sought to enforce its subpoenas in the Arizona district court.

District Court Quashed EEOC’s Subpoenas, But Ninth Circuit Reversed

The district court determined that the pedigree information was not relevant to the charges, as “an individual’s name, or even an interview he or she could provide if contacted, simply could not shed light on whether the [evaluation] represents a tool of . . . discrimination.” The district court refused to enforce the EEOC’s subpoenas.

The EEOC appealed to the Ninth Circuit Court of Appeals, where the applicable precedent indicated that the appellate court must review the district court’s decision to quash the subpoenas de novo (i.e., a completely new review). Concluding that the district court was wrong to quash the subpoenas, the Ninth Circuit reversed, finding that the pedigree information was relevant to the EEOC’s investigation.

The U.S. Supreme Court agreed to resolve a dispute among the Circuit Courts of Appeal on whether the proper standard of review is de novo, as was applied by the Ninth Circuit, or an abuse of discretion review, which other Circuits applied.

Supreme Court Decides Deferential Appellate Review Applies

The Supreme Court decided that a district court’s decision whether to enforce an EEOC subpoena should be subject to a deferential review, namely whether the district court had abused its discretion, rather than a de novo review. Recognizing that the Title VII provision that grants the EEOC subpoena power is the same as the authority granted to the National Labor Relations Board (NLRB) to issue subpoenas, the Court looked to the standard of review used when considering NLRB subpoena enforcement decisions. The Court found that every circuit that had considered that question had ruled that a district court’s decision whether to enforce an NLRB subpoena should be reviewed for abuse of discretion. In addition, almost every circuit other than the Ninth had applied the same deferential review to a district court’s decision whether to enforce an EEOC subpoena. Consequently, this “long history of appellate practice” carried weight with the justices for adopting an abuse of discretion standard in this case.

In addition, the Court focused on the case-specific nature of each EEOC subpoena enforcement decision. A district court must consider whether the evidence sought by the EEOC is relevant to the specific charge at issue and whether the subpoena is unduly burdensome in light of the circumstances. Believing that the district court is better suited than the courts of appeals to address these kinds of “fact-intensive, close calls,” the Court stated that the abuse of discretion standard of review was appropriate. Read more >>

March 21, 2017

Supreme Court Rules That NLRB Acting GC Became Ineligible To Serve After Nomination To Permanent Role

By Steve Gutierrez

Once a President nominates a candidate for a Senate-confirmed office, that person may not serve in an acting capacity for that office while awaiting Senate confirmation, pursuant to a ruling today by the U.S. Supreme Court. In a 6-to-2 decision, the Court ruled that Lafe Solomon, who had been appointed by President Obama to serve as acting general counsel for the National Labor Relations Board (NLRB) during a vacancy, could no longer serve in that acting role after the President later nominated him to fill the position outright.

NLRB General Counsel Appointment

The position of general counsel of the NLRB must be filled through an appointment by the President with the advice and consent of the Senate – a so-called “PAS” office. When a vacancy in a PAS office arises, the President is permitted to direct certain officials to serve in the vacant position temporarily in an acting capacity. Under the Federal Vacancies Reform Act of 1998 (FVRA), only three classes of government officials may become acting officers. The FVRA,  however, prohibits certain persons from serving in an acting capacity once the President puts that person forward as the nominee to fill the position permanently.

In Lafe Solomon’s case, he was directed by President Obama in June 2010 to serve temporarily as the NLRB’s acting general counsel when the former general counsel resigned. Solomon had worked for ten years as the Director of the NLRB’s Office of Representation Appeals and was within the classes of officials who could be directed to serve in an acting capacity under the FVRA. In January 2011, President Obama nominated Solomon to serve as the NLRB’s general counsel on a permanent basis. Solomon continued to serve as acting general counsel for an additional two-plus years as the Senate failed to act on his nomination. In mid-2013, the President withdrew Solomon’s nomination, putting forward another candidate whom the Senate confirmed in late October 2013.

Company Facing ULP Argued Solomon Couldn’t Be Acting GC After Nomination

In January 2013, while Solomon was acting general counsel, SW General, Inc., a company that provides ambulance services, received a complaint alleging it committed an unfair labor practice (ULP) for failing to pay certain bonuses to employees. After an administrative law judge and the NLRB concluded that SW General had committed the ULP, the company argued in court that the complaint was invalid because Solomon could not legally perform the acting general counsel duties after the President had nominated him for the permanent position. The company pointed to wording in the FVRA restricting the ability of acting officers to serve after being nominated to hold the position permanently. Whether the FVRA prohibits all classes of acting officials or only first assistants who automatically assume acting duties from continuing to serve after nomination was the issue before the Supreme Court.

Once Nominated, Official Is No Longer Eligible To Serve In Acting Capacity

The Court ruled that once a person has been nominated for a vacant PAS office, he or she may not perform the duties of that office in an acting capacity. The Court rejected the NLRB’s position that the FVRA restricted only first assistants who were in an acting capacity, rather than restricting all classes of officials directed to serve in an acting capacity who are later nominated for the permanent position. In applying its ruling to Lafe Solomon, the Court ruled that Solomon’s continued service as the NLRB acting general counsel after he had been nominated to fill that position permanently violated the FVRA. NLRB v. SW General, Inc., ___ 580 U.S. ___ (2017).

Solomon’s Actions “Voidable”

So what does this mean for all of Solomon’s actions taken during the over two-year period in which Solomon improperly served as the acting general counsel after his nomination for the permanent position? For example, what happens to the ULP complaints filed by, or at Solomon’s direction, during that period?

The Court noted in a footnote that the FVRA exempts the general counsel of the NLRB from the general rule that actions taken in violation of the FVRA are void ab initio (i.e. from the beginning). The Court of Appeals had ruled that Solomon’s actions during that period were “voidable.” Because the NLRB did not appeal that part of the lower appellate court’s ruling, it was not before the Supreme Court to decide. Consequently, the Court of Appeals’ decision that Solomon’s actions are voidable stands. Accordingly, each action taken by Solomon during the time that he improperly served as acting general counsel would need to be challenged on an individual basis.

March 7, 2017

New Immigration Executive Order Scales Back Earlier Travel Restrictions

By Roger Tsai

On Monday, March 6th, President Trump signed a new, narrower Executive Order (EO) that temporarily restricts travel to the United States by citizens of six Muslim-majority countries. The new EO revokes the administration’s earlier order that was issued on January 27, 2017. Here are the highlights of the new EO and how it may affect employers in the U.S.

Ninety-day Travel Restrictions

The new EO restricts entry into the U.S. of nationals from six countries for 90 days from the effective date of the order, which is March 16, 2017. The six restricted countries are Iran, Syria, Yemen, Libya, Sudan, and Somalia. During the 90-day suspension period, the Secretary of Homeland Security is directed to conduct a worldwide review to identify additional information that is needed from each foreign country to determine whether individuals who apply for a visa, admission, or other immigration adjudication, are a security or public-safety threat. 

Iraq No Longer Subject To Travel Restrictions

As we reported earlier, the administration’s January executive order sought to temporarily restrict travel to the U.S. from seven Muslim-majority countries, and only Iraq has been removed from the list due to the “close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combat ISIS.” The EO further notes that since the January EO was issued, the Iraqi government has taken steps to increase information sharing, travel documentation, and the return of Iraqi nationals who are subject to final orders of removal. Consequently, the temporary travel restrictions will not apply to Iraqi citizens.

Exceptions for Valid Visa Holders and Lawful Permanent Residents

Unlike the confusion caused by the January executive order, the new EO specifies that it does not apply to lawful permanent residents of the U.S. (green card holders) or to foreign nationals of the designated countries who hold a valid visa. The new EO does apply to individuals from the six designated countries who are outside the U.S. and do not have a valid visa on March 16, 2017. In addition, exceptions to the restriction exist for:

  • any foreign national admitted to or paroled into the U.S. on or after the effective date of the order,
  • any foreign national who has a document other than a visa, valid on the effective date of the order or issued any date thereafter, that permits travel to the U.S.,
  • any dual national of one of the designated countries when traveling on a passport issued by a non-designated country, and,
  • any foreign national who has been granted asylum, any refugee who has already been admitted to the U.S., or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Additional waivers of the suspension of entry from the designated countries may be decided on a case-by-case basis, including when the individual has previously been admitted to the U.S. for a continuous period of work, study, or other long-term activity and seeks to reenter the U.S. to resume that activity. Exceptional waivers may also be granted for spouses, children, or parents of a U.S. citizen, permanent resident, or lawful nonimmigrant where a denial of entry causes undue hardship.

Visa Interview Waiver Program Immediately Suspended

The new EO suspends immediately the Visa Interview Waiver Program, which allows travelers to renew travel authorizations without an in-person interview. Now, all individuals seeking a nonimmigrant visa will have to partake in an in-person interview, unless traveling for certain diplomatic or other excepted purposes. 

Refugee Program On Hold For 120 Days

The new EO suspends decision on applications for refugee status for 120 days after the effective date of the order. Unlike the January order, this EO does not single out refugees from Syria as indefinitely suspended. The EO caps the entry of refugees in fiscal year 2017 at 50,000.

March 16, 2017 Effective Date

The new EO becomes effective at 12:01 a.m. on Thursday, March 16, 2017. This advance effective date allows all agencies, airports, airlines, employers, individuals, and others affected by the order to plan for its restrictions.

What Employers Need To Consider

The suspension of the Visa Interview Waiver Program could result in delays for some foreign nationals traveling to the U.S. who now must undergo an in-person interview. Employers who employ individuals in the U.S. with unexpired visas from the designated countries should not be impacted because the suspension only affects workers currently outside the U.S. without a valid visa on the March 16, 2017 effective date. Employers seeking to employ or otherwise work with foreign nationals without existing visas from the six designated countries may need to seek a waiver under the case-by-case review process. We will continue to monitor this order, including any legal challenges that may be filed.

March 2, 2017

Remove That Liability Waiver From Your FCRA Disclosure Form

By Mark Wiletsky

If you use an outside company to run background checks on your applicants or employees, you need to review your disclosure forms asap to make sure the forms don’t violate the Fair Credit Reporting Act (FCRA).

In a case of first impression by a federal court of appeals, the Ninth Circuit recently ruled that a prospective employer willfully violated the FCRA by including a liability waiver in its FCRA-mandated disclosure form it provided to job applicants. Syed v. M-I, LLC, 846 F.3d 1034 (9th Cir. 2017). In fact, any extraneous writing on the disclosure form can lead to significant liability for a willful FCRA violation. And if you think you are safe by using forms provided by your background check company, think again.

FCRA Refresher

Background checks that inquire into a person’s criminal history, driving record, employment history, professional licensing, credit history, or other similar records, can either be done in-house or by an outside third party. In other words, your HR department may make calls, check online resources, or contact law enforcement or the DMV to obtain this information directly, or your company may outsource this function to a background check company that can do the leg work for you. If you use a background check company or another third party to compile this information on your behalf, the information provided to you is considered a consumer report and is subject to the FCRA.

Because of the private nature of this information, the FCRA limits the reasons for which consumer reports may be obtained. Using consumer reports for employment purposes is a permissible purpose under the FCRA, but such use comes with numerous obligations. In 1996, concerned that prospective employers were obtaining and using consumer reports in a way that violated applicant’s privacy rights, Congress amended the FCRA to impose a disclosure and authorization provision. Pursuant to that provision, a prospective employer is required to disclose that it may obtain the applicant’s consumer report for employment purposes and it must obtain the individual’s consent prior to obtaining the report.

FCRA Disclosure Must Consist “Solely” of Disclosure

Specifically, the FCRA provision states that a person may not procure a consumer report for employment purposes with respect to any consumer unless “(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and (ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person.”

It is clear that the required disclosure should be its own standalone document and should not be included within a job application or other onboarding documents. It is also clear that the authorization (consent form) may be included on the disclosure document. But what about other information? May the disclosure form include a statement that the applicant releases the employer (and/or the background check company) from any liability and waives all claims that may arise out of use of the disclosure and obtaining the background check report?

Court Nixes Liability Waiver As Willful FCRA Violation

What may or may not appear in an FCRA disclosure form has been a hot topic in recent years. Numerous class actions have been filed by job applicants (and their aggressive attorneys) alleging that any extraneous language in a disclosure form violates the requirement that the document consist “solely” of the disclosure. Although numerous lower federal courts have grappled with the meaning of that provision, the Ninth Circuit became the first federal appellate court to examine it. (The Ninth Circuit’s rulings apply to Montana, California, Idaho, Washington, Oregon, Nevada, Arizona, Alaska, and Hawaii.)

In Syed’s case, the prospective employer provided applicants with a document labeled “Pre-employment Disclosure Release” that appears to have been obtained from its background check company, PreCheck, Inc. The third paragraph on the single-page document included the following statement:

“I hereby discharge, release and indemnify prospective employer, PreCheck, Inc., their agents, servants and employees, and all parties that rely on this release and/or the information obtained with this release from any and all liability and claims arising by reason of the use of this release and dissemination of information that is false and untrue if obtained from a third party without verification.”

On behalf of a class of over 65,000 job applicants, Syed alleged that by including this liability waiver, his prospective employer and the background check company violated the statutory requirement that the document consist “solely” of the disclosure. The Ninth Circuit agreed.

The Court found that the text of the FCRA provision was unambiguous and that even though the law permits the authorization to be included on the disclosure document, that was an express exception authorized by Congress. The Court further explained the difference between an authorization and a waiver by stating that the authorization requirement granted authority or power to the individual consumer whereas the waiver requires the individual to give up or relinquish a right. Therefore, the Court rejected the employer’s argument that the FCRA permits the inclusion of a liability waiver in the disclosure.

Moreover, the Court deemed this FCRA violation to be willful. Stating that “this is not a ‘borderline case,’” the Court ruled that the employer acted in reckless disregard of its statutory duty under the unambiguous disclosure requirement. As a willful FCRA violation, the employer faces statutory damages of between $100 and $1,000 per violation (remember, there were over 65,000 class members), plus punitive damages and attorneys’ fees and costs. Read more >>

February 27, 2017

Union Organizing At Boeing, Yale University, and Elsewhere Show Need For Swift Response

By Steve Gutierrez

Union organizing campaigns have been in the news a great deal lately. Graduate students at Yale University voted this week in favor of unionizing. But Boeing workers at its South Carolina factory recently rejected representation by the International Association of Machinists, after a long and bitter organizing campaign. What makes the difference between a “yes” or “no” vote? The key lies in understanding current organizing tactics and preparing a timely, effective response.

Boeing Defeats Union Vote In South Carolina

According to news reports, 74 percent of over 2,800 workers at Boeing’s South Carolina factory voted against the union. The election was significant because it is believed that Boeing opened its Dreamliner assembly line in South Carolina at least in part to escape the strong union that represents Boeing’s workforce in its home state of Washington. South Carolina is one of the least unionized states in the country and Boeing mounted a strong opposition to the union campaign there.

Boeing’s South Carolina production and maintenance workers sought more consistent work instructions, fairer evaluations, and higher wages and benefits, according to news reports. In opposition, Boeing is described as emphasizing that the union had earlier opposed expansion of the South Carolina factory and that the union would only come between workers and management.  Reports also describe a series of edgy opposition ads ran by a group closely tied to the South Carolina Manufacturers Alliance, to which Boeing belongs, including one that showed a machinist as a casino boss who pushed workers to gamble away their future. The strong opposition campaign appears to played a significant role in the rejection of the union in the recent vote.

Yale University Grad Assistants Favor Union 

In 2016, the National Labor Relations Board ruled that graduate student employees, such as teaching and research assistants, on private campuses are entitled to form a union and collectively bargain.  (See our post on that ruling here.) That ruling overturned long-standing Board precedent against treating graduate assistants as employees who are entitled to the rights and protections of the National Labor Relations Act. In the short time since last summer’s ruling, at least three campuses have seen graduate students form unions, with Yale University as the latest.

News reports cite numerous motivations behind the teaching assistant’s push for a union, including funding security, mental health care, affordable child care, and equitable pay. Yale, which had expressed its opposition to the 2016 NLRB ruling, warned graduate students that a union could alter their relationship with faculty members and limit their individual power as the union made decisions for everyone. The union’s margin of victory in this week’s election was reported to be slim.

Union organizers took a unique approach at Yale, seeking to have individual departments hold separate elections for their respective grad assistants. This tactic of using micro-units has proven successful in other organizing campaigns as the union need only convince a smaller number of employees in a particular department to vote “yes” rather than getting a majority of all employees holding the same position companywide to vote in favor of the union. In Yale’s case, the union Unite Here was successful in getting the graduate assistants in eight of nine departments to vote in favor of joining the union.

Understanding Union Organizing Tactics

The fast pace of union elections under the “quickie election” rules can significantly favor union organizers. As we’ve written in a prior post, the NLRB’s new election process, in effect since April 2015, accelerates the election process by shortening the time between a union’s filing of a representation petition and the holding of the vote. That time may be as short as two weeks, leaving management little time to ramp up an opposition campaign. Unions can seek to catch employers off guard or unprepared, using the quick election process to win elections without an organized response from management. Read more >>

February 7, 2017

SEC Targets Severance Agreements That Impede Whistleblowers

By Mark Wiletsky and Brian Hoffman

The U.S. Securities and Exchange Commission (SEC) is cracking down on severance agreements that prohibit former employees from contacting regulators or accepting whistleblower awards under threat of losing their severance payments or other post-employment benefits. More and more, the SEC’s Enforcement Division has announced new cases filed against, and settlements made with, companies which restrict former employers from blowing the whistle through severance agreement clauses. Many of the scrutinized companies are not in the securities industry, and the problematic contract language is not as obvious as you may think.

Dodd-Frank Act Established Whistleblower Programs

The 2010 Dodd-Frank Act established whistleblower programs for the SEC as well as the Commodity Futures Trading Commission. Under the SEC’s whistleblower program, eligible whistleblowers who provide unique and useful information about securities-law violations to the SEC can collect significant awards of 10-to-30 percent of a penalty that exceeds $1 million.

Essential to the program, however, are the anti-retaliation provisions, which prevent whistleblowers from suffering adverse actions as a result of their whistleblowing activities. In addition, an SEC rule, Rule 21F-17, prohibits any action that impedes an individual from communicating with the SEC about possible securities violations. Rule 21F(h)(1) of the Dodd-Frank Act prohibits employers from taking retaliatory actions against whistleblowers who make protected reports.

Award Waivers, Confidentiality, and Non-Disparagement Clauses

Severance agreements often contain boilerplate language, occasionally including clauses that restrict a former employee from disclosing any confidential company information and disparaging the company or its officers and managers. Agreements also sometimes require that a former employee agree to waive any awards or monetary recovery should he or she file a complaint with a governmental agency. These severance provisions are exactly the type of restrictive language that the SEC has been targeting.

In its first whistleblower protection case involving restrictive language, in 2015 the SEC charged a global technology and engineering firm with a violation of Rule 21F-17. The company had required witnesses involved in internal investigations to sign confidentiality agreements that stated that the employee could face discipline or termination if they discussed the matter with outside parties without the prior approval of the company’s legal department. Because the investigations could involve possible securities-law violations and the clause prohibited employees from reporting possible violations directly to the SEC, the SEC found that the restrictive language in the confidentiality agreements impeded whistleblowers. The company agreed to pay a $130,000 penalty to settle the charges and voluntarily amend its confidentiality statements to add language to inform employees that they may report possible violations to the SEC and other federal agencies without company approval or fear of retaliation.

Recent SEC Cases Targeting Severance Agreements 

Additional whistleblower severance agreement cases highlight other clauses targeted by the SEC. In mid-2016, the SEC charged a building products company with using severance agreements that required former employees to waive their rights to a monetary recovery if they filed a complaint with the SEC or another government agency. The clause stated that the departing employee was required to waive possible whistleblower awards or risk losing their severance payments and other post-employment benefits. The company did not admit liability, but agreed to settle with the SEC for a $265,000 penalty.

Also in mid-2016, the SEC charged a financial services company for using language in agreements that restricted employees’ ability to disclose information to government agencies. Problematic wording included restricting any disclosure of confidential information, except when disclosure is required by law, in response to a subpoena, or with the company’s permission. (See also our prior client alert on the above three cases.)

Read more >>

February 1, 2017

Workplace Implications of the President’s Immigration Executive Order

6a013486823d73970c01b8d1be606f970c-120wiBy Roger Tsai

On January 27th, President Trump signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” immediately suspending the entry of citizens from Syria, Iran, Libya, Somalia, Yemen, Iraq, and Sudan, as well as the entry of new refugees. Employers with immigrant employees in the affected countries are encouraged to suspend work-related travel into the U.S. for the time being, as they may be unable to enter the U.S. Where possible, immigrant employees currently in the U.S. from the affected countries, even those with valid immigration documentation, such as H-1B visas, should avoid international travel for the next 90 days unless there is more clear indication of enforcement activities, a change to the Executive Order, or court-related clarity.

Who Does The Executive Order Impact?

  • Foreign nationals from the seven affected countries will likely be temporarily prevented from entry at U.S. airports and ports of entry by U.S. Customs and Border Protection for a 90-day period. Similarly, U.S. Embassies abroad are expected to suspend the issuance of temporary nonimmigrant visas and immigrant visas to foreign nationals of the seven countries. The issuance of visas or entry into the U.S. of dual citizens of affected countries will also likely be temporarily suspended. To prevent unnecessary travel, the Department of Homeland Security (DHS) is working with airlines to prevent the selected travelers from boarding international flights. Because the Executive Order also orders DHS to suspend “visas and other immigration benefits” to the citizens of the affected countries, immigrant employees in the U.S. seeking extensions of existing visas through U.S. Citizenship and Immigration Services may potentially be impacted.
  • U.S. permanent residents who are citizens of the affected countries will be allowed to enter the U.S. based on recent updates issued by White House Chief of Staff Reince Priebus and DHS. Initially, the Executive Order only permitted the entry of U.S. permanent residents “when in the national interest” on a case-by-case basis. On January 29th, DHS clarified that lawful permanent resident status will be a dispositive factor in the case-by-case determinations, absent derogatory information indicating a serious threat to public safety and welfare.
  • Newly admitted refugees from any country will be suspended for a 120-day period under the Executive Order. Current employees under refugee status should be permitted to travel internationally but may face additional scrutiny at Customs if they are from the seven affected countries. The entry of new Syrian refugees is indefinitely suspended.
  • Immigrants seeking renewal of their visas through the Visa Interview Waiver Program (VIWP). Previously, the VIWP allowed visitors and other visa holders to renew visas without a consular interview if the immigrant was applying for the same visa category within 12 months of the initial visa expiration. Applicants could simply drop off their application, passport and payment and obtain a renewed visa stamp without undergoing a visa interview. The Executive Order immediately suspends the VIWP and most nonimmigrant visa applicants will be required to attend an in-person interview to renew their visas. The VIWP is separate from the Visa Waiver Program which allows citizens of 38 countries to enter the U.S. as visitors for 90 days without a visa.

Over the course of the next 30 to 120 days, the Department of State and DHS will provide reports to the President regarding the public-security concerns, and we will provide additional alerts as the policy evolves.

January 18, 2017

National Origin Discrimination Checklist

west_lBy Little V. West

National origin discrimination may not be as high on your radar screen as sex, race, or disability discrimination, but it accounted for almost 11% of the total number of charges filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2015. The numbers are even higher for states with more diverse populations – 18.1% of total charges for New Mexico were for national origin discrimination, 16.6% in California, 16.2% in Colorado, and 15.3% in Texas, to name a few.

Title VII Prohibits National Origin Discrimination

As you may know, Title VII, which applies to employers with 15 or more employees, prohibits employment discrimination on the basis of race, color, religion, sex, and national origin. Its protections extend to all employees and applicants for employment in the United States.

The EEOC defines national origin discrimination as discrimination because an individual, or his or her ancestors, is from a certain country or region, or shares the physical, cultural, or language characteristics of a national origin or ethnic group. For example, national origin discrimination would result from treating an employee adversely because he or she is from another country or former country (such as Mexico, China, or Yugoslavia), a place that is closely associated with an ethnic group but is not a country (such as Kurdistan), or belongs to a group that shares a common language, ancestry, or other social characteristics (such as Arabs or Hispanics).

While outright discrimination may be more obvious, Title VII also prohibits less straightforward forms of discrimination. For example, Title VII prohibits associational discrimination, which is when an employer treats an applicant or employee less favorably because he or she associates with (e.g., dates, marries, lives with, is the parent of, etc.) someone of a particular national origin. Employment discrimination also results when an employer treats an individual less favorably because he or she does not belong to a particular ethnic group. For example, a Hispanic business owner who refuses to hire anyone other than Hispanics would be discriminating on the basis of national origin. Moreover, discrimination based on the perception or belief that an individual (or his or her ancestors) belongs to a particular national origin group can be discriminatory, regardless of whether the individual is in fact part of that group.

In addition to prohibiting discriminatory employment decisions, Title VII also prohibits unlawful harassment and retaliation based on national origin. Harassment can include the use of ethnic slurs, intimidation, threats, mocking, and other verbal, written, or physical conduct that is directed toward an individual because of his or her birthplace, ethnicity, culture, language, dress, or accent.

EEOC Issues Updated National Origin Discrimination Guidance

In late 2016, the EEOC published an updated enforcement guidance on national origin discrimination. Intending to better explain employee rights and promote employer compliance, the EEOC guidance offers many examples and HR practices in a wide variety of employment situations that could result in Title VII national origin violations.  In addition, it addresses how national origin discrimination often intersects with other protected characteristics, such as race, color, or religion.  The updated guidance includes several noteworthy points:

  • A place of national origin may be within the United States; in other words, “[n]ational origin discrimination includes discrimination against American workers in favor of foreign workers.”
  • Title VII applies to human trafficking. The guidance explains that, in addition to criminal liability for forcing labor and/or exploiting workers, Title VII may also impose civil liability if the conduct is directed towards person(s) in a protected class, including national origin.
  • The joint employer doctrine applies in the context of staffing firms and client employers. The guidance explains that, “[i]f both a staffing firm and a client employer have the right to control the worker’s employment and have the statutory minimum number of employees,” the entities can be considered joint employers. As an example, a staffing firm can be held liable under Title VII if it were to fail to take prompt corrective action for discriminatory actions based on national origin by the client employer.
  • Recognizing that employees have a choice as to which documents to present to establish authorization to work in the U.S., and that  “newly hired employees should be allowed to work if they have applied for but not yet received a Social Security number,” the guidance states that a blanket policy not to hire candidates who lack a Social Security number can violate Title VII if it disproportionately screens out work-authorized individuals in a national origin group.
  • Preference for U.S. citizenship may be unlawful if it has the purpose or effect of discriminating on the basis of national origin.

We encourage you to review the EEOC’s guidance document.

Checklist For Avoiding National Origin Discrimination Liability

To put the EEOC’s guidance into practical terms, here is a handy checklist that highlights concrete HR policies and employment practices to help your organization avoid liability for national origin discrimination or harassment.

  • ˜Your job application and posts should include an equal employment opportunity statement.
  • When recruiting applicants and posting job openings, do not:
    • state a preference for (or against) a particular national origin (e.g., “looking for U.S.-born candidates” or “must not speak with a foreign accent,” etc.);
    • ˜rely only on word-of-mouth referrals from existing employees (keeps applicant pool too homogenous); or
    • ˜send job postings only to non-diverse outlets or communities.
  • ˜Be careful not to reject applicants based on an ethnically sounding name; consider redacting or hiding names on your initial review of applications and resumes so you are not inadvertently influenced by an ethnic name.
  • ˜During interviews, do not ask candidates about their ethnic heritage, ancestry, accent, or any other direct or indirect questions about national origin, even if you are just trying to be friendly or curious.
  • If you conduct background checks or pre-employment testing, conduct it on all candidates/employees in a particular job category – do not single out only those individuals with foreign-sounding names, accents, etc. for such tests.
  • ˜Refrain from segregating or isolating employees based on their national origin (e.g., do not assign all Hispanic workers to lower-paying positions, or keep all Filipino employees away from the public, etc.).
  • ˜Be careful imposing an English-only language rule – any restriction on language spoken at work must be job related and consistent with business necessity, and should not be imposed during employee breaks or other employee personal time while on the employer’s premises.
  • Make sure your harassment policy prohibits harassment based on national origin, and that you train your employees to avoid using ethnic slurs, stereotypes, name calling, mocking tones, etc.
  • ˜Remember that customer and coworker preferences or prejudices do not justify discriminatory hiring, firing, promotion, or discipline decisions.

A culturally diverse workplace can present unique issues for management but can also help employers remain relevant in our increasingly diverse society. Use this checklist to help avoid potential liability for national origin discrimination in your workplace. Additional information on national origin discrimination may be found on the EEOC’s question-and-answer publication and small business fact sheet.

January 10, 2017

Tips For Accommodating Depression, PTSD, and Other Employee Mental Illnesses

6a013486823d73970c01b8d1dc5d4a970c-120wiBy Mark Wiletsky

An estimated 16.1 million adults in the United States had at least one major depressive episode in 2015, according to the National Institute of Mental Health. This number represents 6.7% of all adults age 18 or older in the U.S. About 7 or 8 out of every 100 people will have posttraumatic stress disorder (PTSD) at some point in their lives, says the U.S. Department of Veteran Affairs, National Center for PTSD. That number goes up to about 11 to 20 out of every 100 for veterans who served in Operations Iraqi Freedom and Enduring Freedom.

As these number show, depression, PTSD, and other mental illnesses are relatively prevalent in our society. At some point, you will be faced with an employee who suffers from a mental condition and you need to know your obligations related to potential accommodations for such employees. The Equal Employment Opportunity Commission (EEOC) recently released information to help explain workplace rights for employees with mental health conditions under the Americans With Disabilities Act (ADA). Incorporating the EEOC’s guidance, here are our top practical tips for accommodating individuals with mental impairments.

Tip #1 – Don’t Get Hung Up On Disability Definition

Following the 2008 enactment of the Americans With Disabilities Amendments Act (ADAAA), it is easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. In fact, the ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals.

Mental conditions, such as depression, PTSD, bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD), need not be permanent or severe to be deemed a disability. Instead, as long as the condition substantially limits a major limit activity, such as the individual’s ability to concentrate, interact with others, communicate, sleep, eat, learn, think, or regulate emotions, it will be considered a disability. Even if the employee’s symptoms are sporadic or episodic, if they limit a major life activity when active, the condition will likely qualify. This means that in most cases, you should focus on whether you can accommodate the individual, rather than whether the individual meets the legal definition of having a “disability.”

Tip #2 – Accommodate “Known” Mental Impairments

You have an obligation to reasonably accommodate “known” impairments for otherwise qualified individuals. Generally, this means that an applicant or employee must ask for a reasonable accommodation. But remember that the disabled individual need not use any special words to trigger your accommodation obligation. In other words, the person does not need to specifically say he or she needs a reasonable accommodation or mention the ADA. The individual instead may simply say that they need a change at work, such as needing to arrive late on certain days in order to attend therapy sessions, and your accommodation responsibility begins.

Generally, however, you are not obligated to provide an accommodation when one has not been requested or no work-related change has been mentioned. But, if you have knowledge of an employee’s mental condition (perhaps from prior conversations or medical documentation) and that “known” disability impairs the employee’s ability to know of, or effectively communicate a need for, an accommodation that is obvious, you should engage in a discussion with the employee about potential accommodations.

Tip #3 – Ask For Documentation

When an employee requests a reasonable accommodation due to a disabling condition, ask the employee to put the request in writing, describing the condition and how it affects his or her work. You may also request a letter from the employee’s health care provider documenting the mental condition and that the employee needs a work accommodation because of it.  However, even if the employee declines to provide a request for accommodation in writing, you still have an obligation to engage in the interactive process and potentially accommodate that individual.

Be careful not to discriminate in your requests for documentation. It is best to have a uniform practice of requesting this written information for all accommodation requests, for both physical and mental disabilities, so that you cannot be charged with singling out a particular employee based on a mental illness.

Tip #4 – Keep An Open Mind About Accommodations

Don’t jump to the conclusion that an accommodation will necessarily be burdensome or costly. Some reasonable accommodations for mental disabilities may be relatively benign. Examples may include allowing the employee to wear headphones to drown out excessive noise, writing down work instructions rather than verbal instructions, changing shifts or start/end times to allow for doctor or therapy appointments, or working in a private room.

Of course, if an accommodation will result in significant expense or disruption to your business, you may be able to decline it due to undue hardship. But don’t assume that upon first request. Instead, engage in an interactive process with the employee, including input from his or her health care provider, to consider possible accommodations. A brainstorming session can often produce a variety of workable solutions, and you can choose the one that best suits your business, as long as it permits the employee to perform his or her job.  Be sure to confirm those discussions in writing with the employee to avoid disputes down the road about what was discussed and/or agreed upon. Read more >>

November 21, 2016

New Form I-9 Must Be Used By January 22, 2017

6a013486823d73970c01b8d1be606f970c-120wiBy Roger Tsai

This week, the U.S. Citizenship and Immigration Services (USCIS) released a new version of its Form I-9, the Employment Eligibility Verification form. All U.S. employers must begin using the new Form I-9 after January 22, 2017.

Currently, U.S. Immigration and Customs Enforcement conducts over 3,000 I-9 employer audits annually, and immigration enforcement is anticipated to increase due to the Trump presidency. In January, Holland & Hart will host a webinar explaining the changes to the Form I-9 and discussing what immigration reforms employers should expect in a Trump presidency.

Form I-9 Changes

The new version of the Form I-9 includes some clarifications as well as some changes designed to make the form easier to fill out electronically. Completing the Form I-9 electronically will require downloading the latest version of Adobe Reader. Form I-9s completed electronically will still need to be printed and signed by the employee and employer agent by hand. One of the changes is in Section 1 which now asks for “other last names used” rather than “other names used.”

Enhancements for easier completion of the form include drop-down lists and calendars for entering dates, the addition of prompts to help ensure that information is entered properly, on-screen instructions for each field, and easy access to the full instructions. It also includes an option to clear the form and start over. Other changes you’ll find on the new I-9 include:

  • Question regarding whether a preparer or translator was used
  • Space to enter multiple preparers and translators
  • A supplemental page for the preparer/translator
  • Creation of a QR code once the Form I-9 is completed electronically
  • A field to enter additional information such as E-Verify confirmation numbers, termination dates and correction notes, and
  • Separating the full instructions from the form itself.

Reminder of I-9 Process

As you may know, the 1986 Immigration Reform and Control Act (IRCA), prohibits employers from hiring employees, including U.S. citizens, without first verifying their identity and checking that they have proper authorization to work in the United States. The Form I-9 ensures that you have completed this necessary verification for all new hires. The proper timing and process for completing Form I-9s for each newly hired employee is:

  1. Employee accepts offer for employment.
  2. Employee completes Section 1 of the I-9 form no later than the first day of work for pay.
  3. Employee provided documents showing identity and employment authorization to employer.
  4. Employer completes Section 2 of the I-9 form no later than the third business day after the employee starts work for pay.

What You Need To Do

You have just over two months to switch to the new Form I-9, so it is best to put procedures in place now to make that switch for all new hires to ensure compliance.