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LB4HR – February 2014

Posted on February 12, 2014

Welcome to Legal Briefs for HR, an update on employment issues sent to over 5000 individual HR professionals, in-house counsel and business owners plus HR and legal professional organizations (who have been given permission to republish content via their newsletters and websites), to help them stay in the know about employment issues.  Anyone is welcome to join the email group . . . just let me know you’d like to be added to the list and you’re in!  Back issues are posted at www.munckwilson.com under Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.”

It may be cold outside but these issues are heating up:

1. The Post is Toast – The NLRB has been trying to mandate a workplace poster which would advise employees of their rights under the NLRA.  After many delays, the poster was unveiled and immediately attacked via lawsuits filed by employer groups.  The D.C. Circuit was the first to invalidate the requirement, followed by the 4th Circuit.  On January 6, 2014, the NLRB announced it would not ask the U.S. Supreme Court to review those appellate decisions, effectively nixing the poster for good.  The NLRB said it will use other means, such as its website and a mobile app to get the word out to employees, as discussed in LB4HR #8 – 2013.

2. On the Rise– President Obama’s state of the union speech hit several employment-related themes, including his promise to raise the minimum wage for nonexempt workers on federal contracts to $10.10 hour.  Since Congress has not budged on several bills filed over the past years aimed at raising the federal minimum wage, he plans to accomplish this on a limited basis by signing an executive order.  He also beseeched state and local governments to use their power to raise the minimum wage above the current federal rate of $7.25/ hour.  One interesting question will be whether and how far the federal contractor mandate trickles down.  Will it also apply the subcontractors’ employees?  Wait and see.

3. Heads Up, Federal Contractors– You are likely already aware of the new regulations under the Rehab Act and VEVRAA which take effect on March 24, 2014.  In preparation for those changes, the OFCCP has issued a  new invitation to self-identify form, to voluntarily elicit that status from individuals with disabilities,  which is to be used in both the pre-offer and post-offer phases of hiring and every five years with current employees.  There is no suggested form for use in inviting covered veterans to do the same, under VEVRAA.  The effective date for use of the form is delayed until the end of the contractor’s current AAP year, if your current plan year begins before March 24, 2014.  For example, if your current plan year runs from February 1, 2014 to January 31, 2015 you do not need to comply until February 1, 2015. The Form CC-305 is now posted on the DOL’s website at www.dol.gov. You will also find a letter from Commissioner of the EEOC, confirming that asking about disabled status at the pre-offer stage does not violate the ADA when done in conjunction with an affirmative action plan obligation.  Note:  Keep on an eye on a lawsuit which was filed by the Associated Builders and Contractors Inc. (ABC) against the OFCCP and DOL on November 19, 2013, seeking declaratory and injunctive relief because the new rules fail to address the unique needs of the construction industry.  In January, the HR Policy Association filed an amicus brief in support of ABC’s position.

4. Not Fun, if You Shun the Jobless– In  the wake of several states which have enacted laws prohibiting employment discrimination against the unemployed, the Fair Employment Opportunity Act of 2014 (H.R. 3972 & S. 1972) has been filed in Congress to expand that new protected category nationwide.  If passed, the bill will apply to employers of 15 or more employees and will be enforced via the U.S. Department of Labor or private action, similar to the FLSA.  The bill makes it an unlawful practice for employers to: (1) refuse to consider or to refuse to offer employment to an individual because that person is unemployed; (2) publish in any medium as part of a job announcement that being unemployed disqualifies the individual from consideration or that the employer will not consider applicants who are unemployed; or (3) direct an employment agency to screen out the unemployed when referring applicants.  The liability language in the bill provides for actual damages equal to: (1) any wages and benefits denied or lost by reason of the employer’s violation; or (2) in cases where there is no such denial or loss, the greater of actual monetary losses to the individual due to the violation or a civil penalty of $1000 per violation, per day.  The bill also tacks on “double damages” (unless the court feels the employer/agency had reasonable grounds for what they did), equitable relief (e.g., hire, compensatory and punitive damages), attorney fees, expert witness fees and court costs if a violation is found. Similar to the FLSA, the statute of limitations is two years but can be three years, if the violation is deemed willful.  For full text of the bill and to follow its progress, go to http://thomas.loc.gov and fill in the bill number.  Note:  Notice that the info normally found on the Thomas website is being migrated to www.congress.gov and the Thomas site will be phased out by the end of this year.

5. Hot Tip– As of January 1, 2014, an IRS ruling provides that mandatory gratuities or service charges are not to be treated as “tips” which means the amount is not excludable from FICA withholding.  This brings the IRS’ position in line with what the U.S. Department of Labor has been saying for a long time and as reinforced in their July 2013 fact sheet on tip credits at www.dol.gov/whd/regs/compliance/whdfs15.pdf.

6. ADA and Temporary Impairments– When the ADA was enacted, the regulations and EEOC guidance explained that the law did not apply to temporary impairments and instead was meant to help those with long-term or permanent disabling conditions.  This position was eroded when the statute was amended by ADAAA in 2008, which said that the definition of “disability” was now to be construed more broadly and new regulations said that some impairments lasting fewer than six months could be seen as “substantially limiting” and be protected under the ADA.  The 4th Circuit has endorsed this relaxed approach by reversing a lower court’s summary dismissal of a claim involving a worker with serious leg injuries that were expected to heal within seven months.  The worker injured himself while commuting to a customer work site, by falling on both knees while exiting a train.  He applied for STD benefits and asked about working remotely from home.  The benefits came, but the remote work arrangement did not.  Instead, he was discharged a few months after the injury occurred. The district court dismissed both claims made under the ADA, that he was discriminated against based on his disability and that his employer failed to accommodate his disability.  The court said he was not disabled (because the condition was temporary and he could’ve used a wheelchair to get around) and that working from home was not a reasonable accommodation because coming to the workplace was an essential function of the job.  On appeal, the 4thCircuit reversed and remanded noting the broader scope of employee rights under the ADAAA, the fact that the employee was substantially limited in the major life activity of walking and observing that “temporary disabilities require only temporary accommodation.”  Summers v. Altarum Institute Corp. (4thCir. Jan. 2014).  Lesson?  Do not assume that a  temporary impairment means you have no obligation under the ADA.  Rely on the interactive process to ferret out what the employee can and cannot do and weigh that against what it may be reasonable for you to do, in the way of accommodation.

7. Pot Poser, Part 2– As discussed in item 7 of LB4HR #4 – 2013, a Colorado court upheld the firing of an employee who tested positive for marijuana even though he was approved to use medical marijuana to ease his paraplegia and he claimed he never used or was under the influence while on the job.  He used the state’s “lawful activities” statute to claim that the discharge was unlawful.  Last month, the CO Supreme Court agreed to hear the case and address two issues:  (1) does the state’s lawful activities statute protect employees from employers’ discretionary discharge for use of medical marijuana outside the job where the use does not affect job performance; and (2) whether the state’s medical marijuana law confers a right to use medical marijuana to persons who are lawfully registered for such use?  It will be interesting to see if they go further and also consider recreational use of marijuana which is now lawful in that state.  Stay tuned!

8. Pain Relief – Just in case you had forgotten that the failure to properly obtain and maintain Form I-9 on  your employees can be costly, listen to the woeful tale of a restaurant tagged with 283 Form I-9 violations.  The violations involved failure to retain the forms for the required period and to properly complete the forms.  ICE assessed a fine of $264,605 which was one-half of the restaurant’s income for 2011.  Happily, the U.S. Department of Justice’s Office of the Chief Administrative Hearing Officer took pity and slashed the fine  to $88,700.  The form must be retained by the employer while the employee remains employed.  Once employment ends, the form must be retained for either three years or one year after the employment ended, whichever is later.  Do not leave any required sections blank, especially the employer attestation.

9. Bits and Pieces

  1. E-Verify – USCIS announced that more than 500,000 employers now use E-Verify with their new hires and that 98.8% of authorized workers are confirmed instantly or within 24 hours.
  2. College Union –No, not the place where you bought coffee and cinnamon buns the size of your head.  A former UCLA football player has formed a labor union at Northwestern University for players on the football team, with the goal of negotiating on their behalf with the NCAA.  The College Athletes Players Association (CAPA) has filed a petition with NLRB to be the players’ collective bargaining rep, but the NLRA has not been found to cover students (except for the on-again, off-again coverage of graduate assistants) and the NCAA does not appear to be their employer.
  3. This Is A Stick Up –If you are covered by OSHA’s Injury and Illness Recordkeeping Rules, your OSHA Form 300A (or equivalent form) should’ve been posted in a conspicuous place where employee notices normally go, on February 1, and must be remain up through April 30, 2014.
  4. You’ve Got Mail –OFCCP sent a wave of Corporate Scheduling Announcement Letters (CSALs) to covered federal contractors, alerting them that they may be selected for a compliance review of their affirmative action plans.  The CSAL does not itself initiate an audit, but may be followed by a scheduling letter, which does.
  5. Labor Stats –The Bureau of Labor Statistics released its annual report on unionization, showing that 11.3% of U.S. workers are in a labor union and in the private sector, that number drops to 6.6%.  The state of NY has the highest percentage of unionized workers (24.4%) and the lowest is NC (3.0%).

10.Stated Differently– Here are some hot topics for you multi-state employers:

  1. New Jersey – The New Jersey Law Against Discrimination has been amended to add pregnancy as a protected category and to require that employers provide reasonable accommodations such as restroom breaks, periodic rest, help with manual labor, job restructuring or modified work schedules and temporary transfer to less strenuous or hazardous work, if based on the advice of the employee’s health care provider.
  2. New York City –Effective January 30, 2014, employers must reasonably accommodate employees based on their pregnancy, childbirth or related medical conditions unless doing so poses an undue hardship.  There is also a written notice requirement and the notice designated by the New York City Commission on Human Rights can be found at on their website at http://www.nyc.gov/html/cchr/html/home/home.shtml.
  3. Oregon– The OR Supreme Court ruled that a closed bar which was reopened 47 days later with a similar name, in the same spot, and using the same equipment (but not the same employees) was a “successor to the business” of the shuttered entity and could be held liable for those former employees’ unpaid wages.  Blachana LLC v. Bureau of Labor and Industries (Ore. Jan. 2014).  In OR (and many other states) when an employee files a claim for unpaid wages and the employer can’t be found or can’t pay, the Bureau of Labor and Industries (BOLI) pays the claim out of state funds and then may sue to recover those monies from “the employer or other persons or property liable.” Even though “successor to the business” is not defined in the statute, it’s been interpreted to include a new employer that is essentially in the same business and on the same premises.
  4. Virginia– Effective Dec. 1,2013, public contractors in VA with more than an average of 50 employees working in VA for the past 12 months must register for and use E-Verify if entering into a contract with a VA agency valued at $50,000 or more, to perform work or provide services.
  5. Washington DC– A three step increase to the minimum wage is set to take effect, pending Congressional OK, beginning with a jump to $9.50/hour on July 1, 2014, then to $10.50/hour on July 1, 29015 and finally to $11.50/hour on July 1, 2016. Future increases will be indexed to the cost of living.

11.Calendar This – Break out that fresh 2014 calendar and pencil in May 15 and 16 for the University of Texas School of Law’s 21st Annual Labor and Employment Law Conference in Austin, TX.  The faculty for this program put together a great program for HR pros and attorneys alike.  See you there!
12. For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-State and my hometown Wichita State Shockers, who are killin’ it), follow me on Twitter.  I’m at @amross.
Until next time,

Audrey E. Mross
Labor & Employment Attorney
Munck Wilson Mandala LLP
600 Banner Place
12770 Coit Road
Dallas, TX  75251

972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)
amross@munckwilson.com
www.munckwilson.com

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