Breakfast Briefing: 10 Employment Tips You Should Know

Transcription

1 Labor and Employment Law Breakfast Briefing: 10 Employment Tips You Should Know Tuesday, November 13, :15 a.m. 9:00 a.m. Four Seasons Hotel 98 San Jacinto Boulevard Austin, TX 78701

2 How Employers Should Prepare For The Next Four Years The Business Immigration Landscape Work Visa Trends 2. DOL: Tightening the Belt on Alien Employment Certification 3. Relief for Dreamers - DACA 4. No Relief for Employers: Continued I-9 Enforcement 2

3 Jamey E. Ayers, Counsel Labor and Employment Practice Group 3

4 # 1 Work Visa Trends

5 Business Immigration Update: H-1B Work Visa Specialty Occupation means: An occupation which requires theoretical and practical application of a body of highly specialized knowledge And which requires the attainment of bachelor s degreeor higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States Including, but not limited to, engineering, mathematics, physical sciences, business specialties, accounting, law, etc. 5

6 Business Immigration Update: H-1B Visa Cap Cap refers to annual numerical limitations set by Congress on the number of workers authorized to be admitted on different types of visas or authorized to change status if already in the United States Each person is counted against the cap once H-1B cap is approx. 85,000 visas per fiscal year Regular cap 65,000 visas Additional 20,000 visas for those with U.S. master s degree 6

7 Business Immigration Update: H-1B Work Visa Trends H-1B visa usage as economic indicator FY 2010 (Oct. 1, 2009 to Sep. 30, 2010) Cap hit December 2009 FY 2011 (Oct. 1, 2010 to Sep. 30, 2011) Cap hit January 2011 FY 2012 (Oct. 1, 2011 to Sep. 30, 2012) Cap hit November 2011 FY 2013 (Oct. 1, 2012 to Sep. 30, 2013) Cap hit June

8 Business Immigration Update: Looking Ahead FY 2014 (Oct. 1, 2013 to Sep. 30, 2014) Expect increase in H-1B visa demand Start preparing H-1B petitions in January 2013 File H-1B petitions on the first day possible: April 1,

9 TN Professionals (NAFTA) Canadian and Mexican citizens Engineers and Certain Professionals No cap Apply at Port-of-Entry or US Consulate NEW: Can now obtain pre-approval from USCIS Valid for 3 years 9

10 Jacquelyn P. Maroney, Senior Associate Labor and Employment Practice Group 10

11 # 2 DOL Trends Tightening up on Alien Employment Certification

12 Background: 3 Steps of the Green Card Process Step 1: DOL PERM Labor Certification Step 2: Form I-140, Immigrant Visa Petition Ghost Step: Wait until an immigrant visa number is available, based on worldwide visa usage, before moving forward. This is a very lengthy wait for persons born in India and China. Step 3: Form I-485, Application to Adjust Status to Lawful Permanent Residence (actual green card application) filed with USCIS 12

13 DOL s Labor Certification Process PERM (Program Electronic Review Management) Labor Certification Employer obtains a Prevailing Wage Determination Employer tests the labor market Employer files PERM labor certification if there is not an able, willing and qualified U.S. worker 13

14 Green Card Process Prepare ETA Form 9089 File with Department of Labor 1/3 of applications are selected for audit. If the application is audited, the employer must submit documentation to verify bona fides. If the application is determined not to require an audit, the application i is certified and returned to the employer. Adjudication may take 2-3 months File I-140 Immigrant Petition with USCIS (Preference Petition) File I-485 Adjustment Application with USCIS when immigrant visa is available Consular Processing when immigrant visa is available File for Advance Parole Document File for Employment Authorization Document 14

15 DOL Trend: Wage Issues DOL Prevailing Wage Determination is a prerequisite for filing the PERM labor certification DOL tells the employer the prevailing wage for the job Takes 6 weeks DOL is exercising discretion in assigning the wage Result: Prevailing wage is often high Employer must agree to pay this prevailing wage in the future once the employee has the green card in hand 15

16 DOL Trend: PERM Audits DOL auditing 1/3 of all labor certifications New Trends: Employee Referral Program is an audit flag Monday-morning quarterbacking: DOL reviewing resumes of the U.S. workers who applied for the job opportunity 16

17 # 3 Relief for Dreamers

18 Relief for Dreamers Legislative Update DACA Deferred Action for Child Arrivals No safe haven for employers 18

19 # 4 ICE Not Cooling on Employers

20 ICE Not Cooling on Employers SEC investigating Chipotle, Inc. for recordkeeping violations related to I-9 audits and large numbers of undocumented workers Infosys, Limited (per SEC filing) put investors on notice that significant number of I-9s had errors 20

21 ICE Not Cooling on Employers Recent DOJ Investigations San Diego Medical Center paid $115,000 for document abuse Garland Sales, Inc. paid $10,000 to naturalized citizen of Hispanic origin who it asked to present Green Card before hiring him Farmlands Foods paid $290,400 (record civil penalty for immigration-related discrimination) FY2011: Total OSC fines collected totaled $735,000 21

22 ICE Not Cooling on Employers ICE Program Updates In 2011, the ICE Employer Compliance Inspection Center opened, which is staffed with 25 full-time auditors who inspect I-9s at the largest companies Federal Law Enforcement Training Center: 200 staff members dedicated to immigration-enforcement training 3,000 I-9 offenders re-audited in FY

23 How Employers Should Prepare For The Next Four Years Labor and Employment Law Landscape 5. Expect the EEOC to push its strategic enforcement plan 6. Expect the NLRB to attempt to continue to expand its reach 7. Understand leave protections for employees with disabilities or medical conditions 8. Prepare for increasingly aggressive government audits 9. Embrace a broader definition of discrimination 10. Prepare for continued focus on pay discrimination and fair pay 23

24 Kimberly King, Associate Labor and Employment Practice Group 24

25 # 5 Expect the EEOC to Push Its Strategic Enforcement Plan

26 Expect the EEOC to Push Its Strategic Enforcement Plan Eliminating systemic barriers in recruitment and hiring by targeting class-based intentional hiring discrimination and facially neutral hiring practices that have an adverse impact Example: In April 2012, EEOC issued enforcement guidance on employer use of arrest and conviction records in employment decisions Focus on convictions, not arrests Safest strategy consider convictions on case-by-case basis the nature and the gravity of the crimes the time passed since the conviction or completion of sentence the nature of the job Protecting immigrant, migrant and other vulnerable workers Addressing emerging issues (ADAAA, LGBT, pregnancy accommodation) 26

27 Expect the EEOC to Push Its Strategic Enforcement Plan Preserving access to the legal system Retaliatory actions Overly broad waivers Settlements that prohibit the filing of charges or providing information to the EEOC Failure to return records required by EEOC regulations Continued targeting of harassment: Renewed focus on education and outreach for both employees and employers 27

28 # 6 Expect the NLRB to Attempt to Continue to Expand Its Reach

29 Expect the NLRB to Attempt to Continue to Expand Its Reach Class Action Waiver Arbitration Agreements The Supreme Court has supported employers' rights to implement mandatory arbitration agreements encompassing class action waivers signed as a condition of employment In January 2012, the NLRB, in D.R. Horton, Inc., held that it unlawfully restricted employees' Section 7 rights Rules that limit social media activity or prohibit disparagement In September 2012, the NLRB found Costco s social media policy too broad: Be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the company, defame any individual or damage any person s reputation or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment. 29

30 # 7 Leave As A Reasonable Accommodation

31 Leave As A Reasonable Accommodation Employers should consider requests for time off that are related to a medical condition as a request for both an ADA reasonable accommodation and FMLA leave Additional leave (beyond FMLA leave) may be a reasonable accommodation Rigid attendance rules can be risky Bottom line: Review leave requests on a case-by-case basis 31

32 Leave As A Reasonable Accommodation Communications with employees on leave Discuss whether the employee likely will be able to return to work (and when) Discuss whether there are other accommodations to help the employee return to work in a timely manner Discuss whether the employer has received any feedback from the employee's physician about the above issues Analyze and document how any additional requested leave of absence poses an undue hardship to your business 32

33 Shafeeqa Giarratani, Senior Associate Labor and Employment Practice Group 33

34 # 8 Prepare for Increasingly Aggressive Government Audits

35 EEOC Audits Focus on systemic discrimination in the workplace Pay audits Disability discrimination and leave 35

36 OFCCP Audits Individuals with Disabilities: Proposed rule would mandate that federal contractors and subcontractors set a goal of having 7% of their workforce be people with disabilities Veterans: Proposed rule would require benchmarks for hiring of veterans and increased veteran outreach and training for managers New scheduling letter: Requires more detailed information during the desk audit phase Record retention: Increased findings of discrimination due to lack of records 36

37 # 9 Embrace a Broader Definition of Discrimination

38 Embrace a Broader Definition of Discrimination Types of Discrimination Transgender Caregiver Association Domestic Violence 38

39 Transgender Discrimination Sixteen states and the District of Columbia ban employment discrimination based on gender identity or expression. Texas does not have a direct ban. In April 2012, in Macy v. Holder, a California woman alleged she was denied a job after revealing that she was transitioning from her life as a man. The EEOC ruled that discrimination against transgender people constitutes t sex discrimination i i under Title VII. The term sex in Title VII encompasses both the biological differences between the sexes and gender and the cultural and social aspects associated with the two genders Not binding on courts, but courts will likely follow At a minimum, employers should expect President Obama to implement these protections for employees of federal contractors by Executive Order. 39

40 Implement Policies to Protect Against Transgender Discrimination Policies: Consider adding gender identity to existing company nondiscrimination and anti-harassment workplace policies Training: Consider updating any staff diversity training programs Names and Pronouns: Managers, supervisors, and coworkers should use the name and pronouns appropriate to the employee's new gender Dress codes: Make sure dress codes are gender neutral. Employees should be allowed to wear clothes that comports with their gender identity Restroom Access: Determine how will handle restroom access during and following transition Guidelines: Consider guidelines for managing workplace transition 40

41 Caregiver Discrimination Caregiver not a protected class under federal law, but can be viewed as a form of sex discrimination States and local districts are starting to expressly recognize caregiver as a protected category The EEOC is making discrimination against pregnant females and caregivers a top priority i 2007 Enforcement guidance Unlawful Disparate Treatment of Workers with Caregiving Responsibilities 2009 Supplemental guidance Employer Best Practices for Workers with Caregiving Responsibilities February 2012 Press release on how pregnancy & caregiver discrimination remain a significant problem 41

42 Caregiver Discrimination Provide concrete ways to properly handle discussion of family in interviews, including informal conversations and chit-chat Train managers to avoid discussion regarding number/ages of children, family planning, and details on childcare arrangements Be clear that no assumptions should be made about caregiver responsibilities Help debunk stereotypes or biases that may result in unlawful conduct Ensure that hiring decisions are well-documented Guard against the steering of caregivers into less time-intensive (prestigious) positions 42

43 Association Discrimination Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011). Background Two employees were engaged to each another. The female co-worker filed a claim of discrimination against her supervisors. Three weeks later, her fiancé, Eric Thompson, was fired for alleged performance problems. Thompson filed a Title VII retaliation claim alleging he was fired because of his fiancé's discrimination complaint. Lower Courts District Court Granted employer s motion for summary judgment. Sixth Circuit affirmed Thompson was not protected under Title VII antiretaliation provisions because he did not personally engage in protected activity. Supreme Court Reversed Thompson has standing to sue for his retaliatory termination. Unlawful employment practice under Title VII to terminate an employee s "close family member" in order to retaliate against the employee for filing a charge of discrimination with the EEOC. 43

44 Association Discrimination Implications Protected based on status, rather than actions Unclear who is covered How close is close enough? May present fact issues that limit summary judgment Best tpractices Exercise discretion in learning about family relationships of employees Consider obtaining a second, separate level of review by a member of management who does not have knowledge of the protected activity or relationship Update pre-termination and pre-disciplinary action checklists 44

45 Domestic Violence Discrimination October 2012 The EEOC published guidance on how victims of domestic violence, sexual assault, or stalking could be protected from discrimination under Title VII and the ADA. An employee has facial scarring from skin grafts, which were necessary after she was badly burned in an attack by a former domestic partner. When she returns to work, co-workers subject her to frequent abusive comments about the scars, and her manager fails to take any action to stop the harassment. Co-workers learn that a male employee obtained a restraining order against his domestic partner. They continuously joke about the incident, believing that only women can be true victims of domestic violence and men should be able to protect themselves. In the aftermath of stalking by an ex-boyfriend who works in the same building, an employee develops depression. The employee requests reassignment to an available vacant position for which she is qualified at a different location. The employer denies the request, citing its "no transfer" policy. 45

46 # 10 Continued Focus on Pay

47 Continued Focus on Pay Discrimination January 2009 President Obama signed the Lilly Ledbetter Fair Pay Act January 2010 President Obama created the National Equal Pay Task Force Brings together the EEOC, the Department of Justice, the Department of Labor, and the Office of Personnel Management Since its creation, $62.5 million in monetary relief has been obtained by the EEOC for victims of sex-based wage discrimination The next four years? More EEOC enforcement actions More scrutiny of federal contractors. OFCCP Director Patricia Shiu: We re tackling this problem [of pay discrimination] from, well, A to Z. The OFCCP is aggressively going after employers who discriminate and making enforcement a top priority. The Paycheck Fairness Act Make it easier for employees to file class action lawsuits Make is harder for employers to assert affirmative defense of business justification Prohibits retaliation of employees who share salary information 47

48 Continued Focus on Fair Pay The U.S. Department of Labor s Right-to-Know regulations under the FLSA currently listed as a Long-Term Action will likely reemerge. Would require employers to "notify workers of their rights under the FLSA, and to provide information regarding hours worked and wage computation." Would require employers classifying any employees as exempt to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to the Wage & Hour Division upon request. 48

49 AUSTIN BEIJING DALLAS DENVER DUBAI HONG KONG HOUSTON LONDON LOS ANGELES MINNEAPOLIS MUNICH NEW YORK PITTSBURGH-SOUTHPOINTE RIYADH SAN ANTONIO ST. LOUIS WASHINGTON, D.C FULBRIGHT [ ]