Trump’s Travel Ban Survives Latest Trip to the Supreme Court

Trump’s Travel Ban Survives Latest Trip to the Supreme CourtNews organizations this week are reporting again on President Trump’s so-called travel ban. But what exactly does that mean? We receive a lot of questions about the travel ban in the context of President Trump’s overall stance on immigration issues and how the travel ban affects visas and possible future employment of citizens from other countries. We will discuss in this post a little bit of the ban’s history and who it affects. As for the legal developments on the ban this week, the administration did receive some good news (for a change), but it ain’t over ‘til it’s over.

What Is the Travel Ban?

You may recall that during his campaign President Trump promised restrictions on travel into the United States from certain countries. This was to be part of the new administration’s attempt to combat terrorism. After assuming office, President Trump issued a travel ban by executive order almost immediately. Opposition groups attacked that executive order legally on multiple constitutional and statutory grounds. Subsequently, the administration issued two more versions of the travel ban, assumably to give the executive order a better chance of surviving legal challenges. We are now on the third version of this executive order. Our team blogged about some of the immigration aspects of the original and subsequent executive orders, including here.

The third and latest ban was issued just this past September. The current ban includes restrictions on travel into this country from Chad, Iran, Libya, North Korea, Somalia, Syria, Yemen, and by certain government officials from Venezuela. The basis for the administration’s ban is to restrict travel from countries with a significant terrorist presence that do not have adequate identity management or information sharing.

Why Was the Travel Ban Challenged?

The travel ban, in all versions, has been challenged primarily on establishment of religious grounds. The challenges assert that the travel ban targets countries on the basis of the predominant religion in those countries. Specifically, the ban has been labeled a Muslim ban by some groups.

Actions by the Lower Federal Courts

The latest version of the travel ban was challenged by lawsuits in Hawaii and in Maryland. Federal district judges in both locations immediately enjoined the ban from taking effect until the lawsuits could be finally resolved, and of course the administration filed appeals. The appeal in Hawaii was to the federal Ninth Circuit Court of Appeals in San Francisco, and the Maryland appeal was to the federal Fourth Circuit Court of Appeals in Richmond.

Neither the Ninth nor the Fourth Circuit have yet ruled finally on the issues in the cases. However, relevant to what happened this week, the temporary injunctions that previously had been entered in both cases preventing the implementation of the ban until the courts finally ruled remained in effect during the appeals. In other words, the bottom line was that, rather than allowing the ban to take effect during the legal-challenge procedure, the ban was suspended during the challenge process.

Enter SCOTUS

This week, the Supreme Court of the United States, in a separate order for each case, ruled that the ban could not be halted during the legal-challenge process. So now, rather than the ban being on the sideline during the lawsuit and appeal process, it goes into effect immediately.

These events this week are important for at least a couple of reasons. First, the U.S. now has an actual travel ban, not just a possible one in the future. Second, the Supreme Court may be indicating how it might rule on the ultimate issue of whether the travel ban as currently written is legal. Certainly the Supreme Court will be ruling again soon “on the merits” after the Fourth and Ninth Circuits decide the legal issues before them. Again, the next time the Supreme Court speaks, it likely will be on the true legality of the travel ban and not just the temporary postponement of it. So, it ain’t over ‘til it’s over.

We will continue to post on President Trump’s executive orders and their impact on immigration compliance.

The More You Know…Or Others Think You Know: Fifth Circuit Finds Decision-maker Had Knowledge to Constitute Retaliation

The More You Know…Or Others Think You Know: Fifth Circuit Finds Decision-maker Had Knowledge to Constitute RetaliationThe Fifth Circuit has issued another opinion in the continuing saga of Jackson State University and its past athletic director, Dr. Vivian Fuller—this one about retaliation against a witness. To refresh everyone’s memory: A secretary at JSU filed an EEOC charge claiming that AD Fuller sexually harassed her and then fired her. During its investigation, JSU’s attorneys and the EEOC interviewed Fred Robinson, the Director of Sports Medicine, who witnessed some of the AD’s actions. A month after those interviews, AD Fuller terminated Robinson. He felt it was retaliation for his testimony; JSU said it was due to a reorganization of the athletic department and issues with Robinson’s daily availability.

The District Court Case and Verdict

Robinson sued JSU alleging retaliation under Title VII and the First Amendment. The case went to trial and the two big questions were: 1) Did Dr. Fuller actually know that the EEOC interviewed Robinson, and 2) were the reasons for Robinson’s termination simply pretext for retaliation? At trial, Dr. Fuller denied any knowledge of Robinson’s interviews. Without direct evidence, Robinson offered circumstantial evidence including: 1) He was fired not long after his EEOC interview; 2) JSU’s own attorneys knew about the interview and met with Fuller after the interview; 3) Dr. Fuller started avoiding him after the interview; and 4) JSU’s president had threatened to fire anyone who was against the AD (pretty strong one, there). JSU countered by claiming that Dr. Fuller had already decided to fire Robinson before the interview even occurred and also came up with some other incidents.

The jury sided with Robinson and awarded him just over $30,000 in compensatory damages and $75,000 in punitive damages. JSU moved to set aside the verdict claiming that there was insufficient evidence to show that the decision-maker, Dr. Fuller, had actual knowledge of Robinson’s EEOC interview, so she could not have retaliated against him for it. The court agreed with JSU and overturned the verdict. Robinson appealed.

What the Fifth Circuit Said

The Fifth Circuit narrowed the issue to whether there was legally sufficient evidence that Robinson’s EEOC interview (the protected activity) caused his termination (the adverse employment action). If Dr. Fuller had no knowledge of the protected activity, the termination could not be retaliation. The court noted that direct proof that a decision-maker had knowledge could be “elusive” — almost all of the people being accused of retaliating are going to feign ignorance of anything that could have given them a motive. For example, “I had no idea that Suzie had reported our slippery floors to OSHA! I terminated her only because we no longer needed an accountant.”

In the Fifth Circuit (Mississippi, Louisiana and Texas), for a successful retaliation claim you have to show that the actual decision-maker had knowledge — not just that the corporation had constructive knowledge (as it is in other federal circuits). In this case, JSU argued that all of Robinson’s evidence was merely speculative. However, as the Fifth Circuit noted, it obviously was enough for the jury. The indirect and circumstantial evidence, such as the president’s threat to fire anyone who opposed the AD and the JSU’s attorneys meeting with the AD after the EEOC’s interview with Robinson, were, according to the Court, the “prototypical circumstantial indicators of decision-maker knowledge.” In regular speak, it was enough to convince the jury, and ultimately the Fifth Circuit, that Dr. Fuller knew about Robinson’s interview, despite her denials. The Fifth Circuit reversed the lower court’s striking of the verdict.

What Does this Teach Us?

Just because you have a decision-maker who says he didn’t know about a complaint (or EEOC charge, OSHA report, ADA request, or whatever) before he terminated the complaining employee or one of her witnesses that may not get you off the retaliation hook. Before you pull the trigger, you need to look at all the circumstances surrounding the potential adverse employment decision. Is it close in time to the protected activity (e.g., complaint, testimony)? Who knows about the protected activity, and what access have they had to your decision-maker? Has your CEO or anyone else made any threats or other comments about the claim that could hurt down the road?

As we always say, retaliation can be tricky. You have to not only defend the complaint but also prevent the retaliation fallout. While filing a complaint doesn’t make an employee bulletproof, it should at least make the employer take a good look at any future decisions that may affect that person or his or her supporters.

Getting a Green Card Just Got Tougher: USCIS Will Now Interview All Employment-Based Adjustment of Status Applicants

Getting a Green Card Just Got Tougher: USCIS Will Now Interview All Employment-Based Adjustment of Status Applicants   The U.S. Citizenship and Immigration Services (USCIS) recently announced a new policy requiring all adjustment of status applicants seeking employment-based green cards to appear for an interview at a USCIS field office. The adjustment of status application is the final step in the green card process for foreign non-immigrant employees looking to move to permanent resident status without leaving the United States.  Prior to this change, which went into effect on October 2, 2017, USCIS required interviews in only 5 to 10 percent of all employment-based adjustment cases.

The new policy applies to all Form I-485 adjustment of status applications filed on or after March 6, 2017, where the underlying immigrant petition is an employment-based Form I-140 (EB-1, EB-2, and EB-3). The USCIS has indicated that adjustment cases filed prior to March 6, 2017, will be adjudicated in accordance with previous procedures.

The USCIS has stated that the new policy is in compliance with President Trump’s Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and “is part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.” Critics, however, have charged that the new policy is not necessary because there is no widespread fraud in employment-based adjustment adjudications and will only serve to delay an already lengthy and complex green card process.

What Does It Mean for Employers?

This change affects all employers who sponsor foreign workers for permanent residency. It is essential that the employer make sure that any worker going through the interview is thoroughly prepared. An employee’s misstep during this final vetting process could totally derail the entire green card case at the very last stage.

In addition, because thousands of extra interviews will be conducted annually, there will almost certainly be additional delays in the processing of these employment-based adjustment applications. In fact, the USCIS has estimated that these applications will ultimately account for approximately 17 percent of the USCIS’s entire field operations workload. And, as resources get shifted around, the change will impact the processing times for other types of USCIS filings, such as family-based adjustment applications and naturalization cases.

What Should the Applicant Expect at the Interview?

The applicant could be asked about almost anything, but the USCIS has specifically stated that the following matters will be probed:

  • Any information provided on the Form I-485.
  • Issues relating to the applicant’s eligibility or admissibility, such as any arrests or misrepresentations made to an immigration officer.
  • The applicant’s entire immigration history, particularly whether the applicant has properly maintained his non-immigrant status.
  • Family members applying as derivative to the employment-based principal applicant should anticipate questions about their relationship to the principal and the bona fides of that relationship.

If the field officer conducting the interview is not satisfied with an applicant’s answers and believes that an applicant is not eligible for adjustment, the Form I-485 will be denied.

Will the Field Officer Re-Adjudicate the Form I-140?

Technically, no. The USCIS has said that the interviewing field officers have been instructed not to re-adjudicate the underlying Form I-140. However, the agency has also made clear that the officers will be charged with assessing the validity of the documents used to approve the Form I-140 petition to ensure that the supporting evidence was accurate and credible. If the officer determines that that evidence is not credible, he can recommend that the Form I-140 be revoked by the service center that originally issued the approval.

For this reason, it is imperative that the applicant thoroughly understand the basis for the Form I-140 petition and be prepared to articulate at the interview how his employment qualified for approval. The applicant should review the Form I-140 petition and any underlying PERM application in advance and address any tricky issues with the employer or counsel. The applicant will almost certainly be questioned about the job for which he was sponsored as well as about his own educational background and work experience. Mistaken or sloppy responses could lead to a disastrous result.

Should the Applicant Have an Attorney?

Applicants are entitled to legal representation at their USCIS interviews, and it is certainly best if they are accompanied by counsel. Although attorneys are typically discouraged from actively participating in the actual interview, they can help limit misunderstandings between the applicant and the interviewing officer and ensure that the process does not go off the rails.

Just as important, an attorney can prepare the applicant on what to expect beforehand and work with the employer and the applicant to make sure that the applicant takes the appropriate documentation to the interview. The interview notices that are currently being sent out are generic and somewhat confusing as they include certain documents that do not even apply in employment-based cases. Having a knowledgeable immigration attorney involved in the interview process can help ensure that the employee’s green card does not get denied at the final hour.

Calling ICE about Your Plaintiff Could Make You the Defendant

Calling ICE about Your Plaintiff Could Make You the DefendantAn attorney representing his employer-client calls Immigration and Customs Enforcement (ICE) to inquire about the plaintiff’s immigration status. Is that potentially retaliation under the employment laws? If it is, can the attorney be sued personally for it? According to the Ninth Circuit, the answer is yes on both counts, and the Supreme Court may have the final say on such a scenario.

 

For those of you who are tempted to stop reading because you aren’t a lawyer (and may not care if your lawyer can be sued)—not so fast. If a non-employer can be sued personally for retaliation, this could have broad application to HR professionals, accountants, private investigators, or other consultants.

Background

Jose Arias sued his former employer, Angelo Dairy, for violation of wage-and-hour laws under the California Labor Code. Dairy hired an attorney, Anthony Raimondo, to defend the case. In 2011 as the trial date approached, Raimondo contacted ICE to see about Arias’s immigration status (which apparently was potentially problematic for Arias). This led to Raimondo having multiple communications with ICE about potentially taking Arias into custody. Additionally, it led to disqualification of Arias’ legal counsel, the California Rural Legal Assistance group, which was barred by statute from representing undocumented aliens. A month before trial, Arias agreed to settle the case “due in substantial part to the threat of deportation created by [Raimondo’s] communications with ICE.” Raimondo had apparently contacted ICE on previous occasions related to other employees who asserted workplace rights against his clients.

After settling his wage and hour suit, Arias then filed a retaliation case against Dairy, as well as Raimondo personally. Arias alleged that Raimondo’s call to ICE was retaliation under the FLSA and intentional infliction of emotional distress.

District Court: The Attorney Is Not an Employer and Cannot Be Sued

The preliminary issue was whether Arias could sue Raimondo for FLSA retaliation when Raimondo was not Arias’ employer. The FLSA’s anti-retaliation statute makes it unlawful for “any person” to “discharge or in any other manner discriminate against any employee because such employee has . . . instituted any proceeding under” the FLSA. The Act defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee…”

Arias settled and dismissed his retaliation claims against Dairy, but not against Raimondo personally. The District Court dismissed Arias’ complaint against Raimondo, finding that an aggrieved employee can only sue his or her employer under the FLSA and that the FLSA’s provisions referred to an employer-employee relationship. The District Court found that Raimondo never acted “directly or indirectly in the interest of the employer” in employment matters. In coming to this conclusion, the District Court considered “the total employment situation and economic realities of the work relationship.” Arias appealed, and the Ninth Circuit reversed.

Ninth Circuit: The FLSA’s Anti-Retaliation Section Is Broader than Just the Employer-Employee Relationship

On appeal, the Ninth Circuit reversed, explaining that the FLSA provisions for wage-and-hour violations and retaliation claims “are as different as chalk is from cheese.” While the employer umbrella for wage-and-hour claims looks to the economic realities test, when a plaintiff alleges a retaliation claim it “is a different animal altogether.” As the court expressed:

This distinctive purpose [of the anti-retaliation provision] is not served by importing an “economic control” or an “economic realities” test as a line of demarcation into the issue of who may be held liable for retaliation. To the contrary, the FLSA itself recognizes this sensible distinction…. by prohibiting “any person”—not just an actual employer—from engaging in retaliatory conduct.  By contrast, the FLSA’s primary wage and hour obligations are unambiguously imposed only on an employee’s de facto “employer,” as that term is defined in the statute. Treating “any person” who was not a worker’s actual employer as primarily responsible for wage and hour violations would be nonsensical.

The appellate court also seemed disturbed by Raimondo’s “underhanded plan to derail Arias’ lawsuit” and history of reporting employee-claimants to ICE.

Attorney Asks the Supreme Court to Decide

Raimondo did not take kindly to the Ninth’s Circuit’s opinion, and on October 31, 2017, filed a petition for a writ of certiorari, essentially asking the U.S. Supreme Court to hear the case.  Raimondo contended that the Ninth Circuit’s conclusion flouted prior precedent on the FLSA’s definition of employer. The petition noted that the majority of circuits use the economic realities test to determine who is an employer, and do not differentiate between a wage-and-hour versus a retaliation-based claim.

Stay Tuned

If the Ninth Circuit opinion stands, it could have far-reaching consequences for the relationships among employers, their attorneys, and others who could be dissuaded from representing employers or from pursuing certain strategies where they could become potential defendants in FLSA retaliation cases. As Raimondo’s petition tries to illustrate, not just attorneys, but also accountants, HR personnel, and even a gardener, could become defendants for playing some role in an adverse action if ICE has been contacted. An attorney may have legitimate, non-retaliatory reasons for asking ICE about an immigration status, but the ruling may chill attorneys from representing employers and hamper employers’ efforts to secure counsel. We will see if the Supreme Court makes a final determination on this significant issue, but the Ninth Circuit’s decision creates the platform for an individual (attorney or otherwise) who is not the employer and does not control the employer to be sued for retaliation under the FLSA.

Happy Thanksgiving and the Many Things for Which We Are Thankful

Happy Thanksgiving and the Many Things for Which We Are ThankfulBefore everyone gets out of the office to their various homes and families to celebrate the holiday, we wanted to review the year and count our blessings. Not only are we thankful that our families and colleagues in our Houston and Tampa offices weathered the storms safely, we are also thankful for the following legal stuff:

1. The DOL is not about to change the wage and hour laws.

Does anyone else remember the panicked calls last Thanksgiving week when the Texas judge put the brakes on a regulation that was going to increase the salary basis test? We are all thankful that will not happen this year. Although we still don’t know what, if anything, will happen on that front we will keep you posted.

2. Finally a court has said the ADA is not about leave.

Despite the EEOC’s insistence otherwise, the Seventh Circuit stepped up to the plate and said extended leave is not a reasonable accommodation under the ADA. As we all know, you still need to consider if a limited amount of leave will get the employee back to work but we are thankful that we have some new case law on this front.

3. Harvey Weinstein doesn’t work for us.

This story has horrified many but given all employers a wake-up call. We are grateful for the opportunity to train more people and try to make America a better place to work.

4. The NLRB has a new direction.

Maybe the new Board won’t tell employees that it is okay to swear at your boss on Facebook or nitpick employer policies quite so much.

5. You’re not going to be the employer of someone else’s employees.

DOL has withdrawn its prior guidance on independent contractor and joint employer liability, and Alabama’s Rep. Byrne has introduced a bill to “Save Our Small Businesses.”

6. Legalized marijuana has made questions about drug policies so much more interesting.

Even though it isn’t legal in many states, the fact that employees can legally ingest marijuana many places (including Florida) and take their chances on the looming random drug screen has spiced up our lives. While the law will continue to develop in this area, we are grateful for the very interesting questions we have received.

7. People other than our mothers read this blog.

(Okay, some of our moms are reading and might boost the numbers a little bit.) Since 2016, we have published more than 130 articles and had more than 230,000 reads, according to aggregate reports from Lexology and JD Supra. We have received recognition in The Expert Institute’s Best Legal Blog 2017 competition, the ABA Journal’s Web 100 Ranking, and numerous quotations in other publications. We enjoy bringing you this information and love it when you tell us it is helpful or tweet it to someone else.

Happy Thanksgiving from the Labor & Employment Insights blog team!

The Waiting Is the Hardest Part: Fifth Circuit Rules on Compensability of Pre-Shift Wait Time

The Waiting Is the Hardest Part:  Fifth Circuit Rules on Compensability of Pre-Shift Wait TimeWhile the Portal-to-Portal Act sounds more like a science fiction movie than a wage statute, it comes into play every day for hourly employees. Enacted in 1947 in response to litigation following the relatively new (at the time) Fair Labor Standards Act, the act attempts to provide rules for when employees must be paid when they may not be actually performing their duties. Specifically, FLSA prohibits employees from seeking wages for time spent:

  • Traveling to and from the actual place where they perform the principal activities of their job, and
  • Activities which are preliminary or postliminary to those work activities.

The purpose of the law was to only compensate employees for activities integral and indispensable to their work.

Prior Court Decisions

Case law after the passage of the act further defined what counted and what didn’t. For example, courts held that for employees who manufactured batteries and worked with dangerous chemicals and fumes, time showering and changing clothes after work counted as integral and indispensable to the job and should be paid. However, courts held that time waiting to don protective gear (not the time actually spent putting on the gear) was not compensable under the Portal-to-Portal test.

More recently, courts have addressed post-shift security screenings of employees to see if that waiting time was compensable. In Integrity Staffing Sols., Inc. v. Busk, the Supreme Court held that since mandatory security screenings of warehouse employees’ were not related to their jobs of retrieving and packaging products for shipment, the time waiting for the post-shift security screenings was not compensable. Other state courts have followed suit.

So What Did the Fifth Circuit Do?

On November 9, the Fifth Circuit issued an opinion dealing with construction workers on an oil drilling operation. The plaintiffs were scaffolding workers that had to park in a remote lot and ride company buses to the refinery. While their shifts started at 7 a.m., the buses sometimes delivered them to the refinery earlier, and they had to wait around until the shift started. They filed an action arguing that the time they had to wait between being dropped off and the start of the shift was compensable because they were not allowed to perform any work during that time, but it was beneficial to the employer.

The Fifth Circuit held that the test for Portal-to-Portal compensability was whether the wait time was integral and indispensable to the principal activities they were employed to perform. Here, plaintiffs erected and dismantled scaffolding. During the wait time, they were not undergoing safety training, donning safety equipment or completing paperwork—all of that was done after 7 a.m. and paid. Instead, most of the workers testified that they used the wait time to “chat” or “smoke.” They argued that since the wait time was required by and benefited the employer, they should be paid for it.

The court disagreed. It held that under the Busk decision, the fact that an employer required an activity and that it may benefit the employer was not enough to make it compensable. Instead, the workers had to show that the preliminary wait time was integral and indispensable to their work erecting and dismantling scaffolding. The proof did not show that it was, and therefore they were not entitled to compensation for it.

What to Do with Waiting Employees?

If there are things that your employees are having to do before or after a shift, you need to be sure of what they are actually doing. If they are waiting for something like a post-shift security screening, that time may not be compensable. If they are donning safety equipment or cleaning off after a dangerous activity, it may be compensable. This decision shows that it is important to have well-defined rules as to when a shift begins and what is required of an employee pre- or post-shift.

Tis the Season: The EEOC’s Year-End Reports Are Out Today

The EEOC’s fiscal year just ended and now it is releasing news of its successes. Although this is a look back, it gives us all insight as to what is important to the Commission and, perhaps, how we can stay off its radar. While the official report is being released today, here are some highlights.

Tis the Season: The EEOC’s Year-End Reports Are Out TodayMore Efficiency, Quicker Resolution?

The EEOC is working on being more efficient and thinks it is making some progress. First, offices are prioritizing charges to focus on meritorious charges and disposing of charges more quickly. It received more than 84,000 charges of discrimination in the last fiscal year and, through its improved efficiencies, reduced its backlog to the lowest it has been in 10 years.

Another innovation is the new EEOC Public Portal that was just launched nationwide. This appears to be the flip side of the employers’ Respondent Portal that we have been using for the last few years. Employees can now find out how to file a charge, set up interviews with the EEOC and check the status of their charges all from the comfort of their homes.

More Money, More Lawsuits

As with so many government agencies, the EEOC is touting the amount of money it has recovered. The EEOC collected nearly $400 million from employers in the private sector and state and local government. Of that amount, the vast majority ($355.6 million) was paid voluntarily — through mediation, conciliation and other administrative enforcement.

On the litigation front, the EEOC recovered $42.4 million through litigation last year. The EEOC also stepped up the number of lawsuits it filed. The commission filed 184 lawsuits, more than doubling the number from FY 2016. Of the 184 suits, about 67 percent were for individuals, while only 16 percent were systemic suits.

Training Resources

You can now have the EEOC Training Institute staff train your supervisors (Leading for Respect) and employees (Respect in the Workplace). I have a client who has had the EEOC come provide harassment training for the last several years, and it looks like the Commission is institutionalizing those efforts. As the program is new, I cannot tell you what it is like. However, it is certainly something to consider, particularly in the wake of recent harassment complaints.

Takeaways

First, the EEOC is clearly trying to reduce the amount of time a charge spends with the agency. We have all had charges that were pending for more than two years—which then means you could have to defend a lawsuit with a back-pay figure that is already out of control. Perhaps the improved efficiencies will make these stale charges a thing of the past.

Second, the EEOC wants to resolve the charges early and is having some success doing so. I always talk with clients about EEOC mediation—and it works with many (although not all) charges. I have also noticed that EEOC investigators try to encourage settlement discussions even when the parties have not agreed to mediate the charge. Although I was initially leery of having the purportedly neutral investigator orchestrate negotiations, for the most part I have found the investigators’ efforts to be helpful and have resolved some charges (usually low dollar) in that way.

Third, note that the majority of the EEOC’s lawsuits are filed on behalf of individuals —not multiple plaintiffs or systemic issues. The EEOC has a list of priorities (harassment, pay disparity and disability are perennial favorites) and wants to make law on those issues. These numbers make clear that the Commission is willing to make that law one plaintiff at a time.

Finally, IMHO the best training involves your employment counsel. However, the EEOC’s training resources are worth considering. If you use these resources, it will be tough for the Commission (or a plaintiff’s lawyer) to argue that you don’t take prevention seriously.

Ahead of Schedule? What Oregon’s Fair Work Week Bill Means to the Retail, Hospitality, and Food Service Industries

In case you didn’t know, Oregon enacted the “Fair Work Week” law, making it the first state to legally restrict the scheduling practices of employers in the service sector. The highlights include:

  • an obligatory rest period for employees between shifts,
  • written work schedules in advance of shifts, and
  • additional pay for employees if employers want to deviate from the written work schedule.

Ahead of Schedule? What Oregon’s Fair Work Week Bill Means to the Retail, Hospitality, and Food Service IndustriesThe obligations for covered Oregon employers are extensive and onerous. Oregon employers would be well served to begin taking steps to ensure they are prepared to comply well before the effective dates (primarily in July 2018).

Which Employers Are Affected?

The law applies to retail, hospitality, and food service establishments in Oregon that employ 500 or more employees worldwide. In calculating the number of employees, a chain or integrated enterprise is considered one employer. If a separate entity controls the operation of another entity, the entities could collectively be considered an integrated enterprise. The factors to consider in this analysis are the interrelationship between the operations of multiple entities, shared common management, centralized control over labor, and common financial control. Oregon’s Commissioner of the Bureau of Labor and Industries is to adopt further rules outlining when and under what circumstances separate entities constitute a single integrated enterprise.

Which Employees Are Covered?

Oregon employees covered under the law must not only be one of at least 500 employees worldwide but also engaged in providing services relating to retail trade, hotels, motels, or food services, as those terms are defined in the 2012 North American Industry Classification System. However, the law excludes salaried employees, workers supplied by a leasing company, and employees of a business that provides services to or on behalf of the employer.

What Are the Key Provisions?

  1. Work Schedule Estimate: At the time of hire, an employer must provide a new employee with a written, good-faith estimate of the employee’s work schedule. The estimate must (a) include the expected monthly median number of hours, (b) explain that the employee may elect to be on a voluntary standby list, (c) indicate whether an employee who is not on the standby list can expect on-call shifts, and (d) set forth an objective standard for on-call shifts.
  2. Standby List: An employer may maintain a standby list of employees who may be asked to work additional hours. The employee must agree in writing to be on the standby list, and the employer must notify the employee in writing of the standby procedures. The employer’s notification must include (a) that the list is voluntary, (b) how an employee can get off the list, (c) how an employer will offer additional hours, (d) how the employee accepts additional hours, and (e) that the employee is not required to accept the additional hours.
  3. Advanced Work Schedule: An employer must provide a written work schedule at least seven days before the first day of work scheduled (beginning July 1, 2020, this advance notice period expands to 14 days.) The work schedule must be posted in a conspicuous and accessible location and written in the language the employer uses to communicate with its employees. If an employer subsequently changes the work schedule, the change must be timely and the employee can decline the change.
  4. Right to Rest: Unless an employee agrees, an employee generally gets a 10-hour break between shifts.
  5. Compensation for Schedule Changes: If an employer changes a work schedule (without the required advanced notice) and the change either (a) adds more than 30 minutes to a shift, (b) alters the date, start time, or end time with no loss in hours, or (c) constitutes an additional shift, then the employee gets an additional 1 hour of pay at the regular rate (over and above wages earned). If an employer changes a work schedule (without the required advanced notice) and reduces or cancels an employee’s scheduled hours, then the employee gets 1.5 times the regular pay rate for each hour scheduled but not worked. Likewise, an employee scheduled for an on-call shift but not asked to perform work gets 1.5 times the regular pay rate for each hour scheduled but not worked.

What Additional Rights Do Employees Have?

The law also contains anti-retaliation provisions and provides employees with a private right of action. Employers are expressly prohibited from interfering with an employee’s rights protected under the law and from retaliating or discriminating against an employee for asking about the law. Also, an employer may not retaliate against an employee who either (a) chooses not to be on the standby list, (b) requests removal from the standby list, or (c) declines to work additional hours as a result of being on the standby list. An employer is subject to a civil penalty (not to exceed $2,000) for coercing an employee into being added to the standby list, with each violation constituting a separate offense.

If You Are a Retail, Hospitality, or Food Service Employer, What Should You Do?

As of today, Oregon is the only state to have enacted this kind of scheduling law. Therefore, so long as you are not a qualifying “employer” with a business establishment in Oregon, there is no need to take any immediate action. However, if you are covered under the law or anticipate entering the Oregon market, you should begin preparing. The first step is to determine whether your business is a qualifying “employer” and is, thus, affected by this law.

The passage of Oregon’s Fair Work Week law – coupled with the recent passage of similar citywide legislation – suggests that you can expect more restrictions on the scheduling practices of retail, hospitality, and food service businesses in the coming years. Apart from the economic effects resulting from the discontinuation of on-call scheduling, the penalties for violating such laws (if Oregon’s law is any example) could be significant. Therefore, employers should keep an eye on this apparent legislative trend and should not hesitate to seek out legal counsel if they believe they might be affected.

Flipping Out Over Flipping Off: What Are the Limits on Regulating Employee Political Speech?

Around the end of October, a photo of a government contractor employee flipping the bird to President Trump’s motorcade went viral after the woman made it her profile picture on Facebook. She was subsequently fired for a violation of her company’s social media policy. The company said that the image was “lewd” and “obscene.” The woman argued that she was not at work when the photo was taken and did not mention her employer in the post. No litigation or charges have been filed yet, but would they be successful?

Can an Employer Regulate Political Social Media Speech?

Flipping Out Over Flipping Off: What Are the Limits on Regulating Employee Political Speech?

What comes to most people’s mind when reading this type of scenario is the First Amendment guarantee of free speech. However, the First Amendment protects against governmental censorship of speech. With some restrictions, a private employer can restrict speech in the workplace. This right to restrict also may be extended to social media speech, especially when the employer has a written social media policy and if the employee is using employer-provided equipment (cell phone or computer) to engage in the speech. Coupled with the fact that many states are “at-will” employment states, it may be perfectly acceptable for an employer to terminate an employee who engages in speech that the employer finds offensive or non-productive.

One complication outside of the First Amendment is the National Labor Relations Board’s recent decisions that employees cannot be restricted from commenting on social media about their conditions of employment. The NLRB considers such comments to be “concerted protected activity” for which an employer may not retaliate. However, as seen here, there may be social media posts that have nothing to do with the conditions of the workplace, but that the employer doesn’t like. For those posts, discipline or termination may be an option.

This story is a good prompt for employers to review their social media policies and to talk about them with their employees. Remind employees that, although they may not expressly identify each post with the place they work, they still may be considered the face of the organization. Political discussions are not per se taboo—but the tone and language used may sometimes stray into offensive territory. As always, an open dialogue about employment policies usually results in happier employees and less difficult situations.

Whatever Happened to Those New Overtime Regulations? DOL May Be Sending a Signal with Its Notice of Appeal

Whatever Happened to Those New Overtime Regulations? DOL May Be Sending a Signal with Its Notice of AppealRemember last year when everyone was getting ready for the big change to the salary threshold for the overtime exemption that was set to go into effect on December 1? And then, seemingly out of nowhere, a judge put a stop to all of those worries? Ever wonder what happened to those pesky regulations? Although we still don’t know what is going to happen, it is worth a look back and a status update.

The Timeline

  • May 23, 2016: The DOL revised the FLSA overtime regulations to more than double the minimum salary a company must pay an employee for that employee to qualify as exempt from overtime status. The revised regulations were set to go into effect on December 1, 2016.
  • November 22, 2016: Judge Amos L. Mazzant, United States District Judge for the Eastern District of Texas, issued a nationwide injunction, enjoining implementation of the revisions.
  • August 31, 2017: Judge Mazzant ruled that the proposed revisions were invalid, finding that the department had exceeded its authority in making them.

The Latest

On October 30, 2017, the DOL Wage and Hour Division announced that the Department of Justice had filed a Notice of Appeal of Judge Mazzant’s ruling. According to the DOL’s statement, once the appeal is docketed, the Department of Justice will file a motion to hold the appeal in abeyance until after the DOL has undertaken “further rulemaking to determine what the salary level should be.”

This announcement indicates that the DOL is in the process of modifying the revisions — potentially rendering the appeal moot — however, it needs more time to do so. As noted in the October 30 statement, the DOL is currently reviewing the submissions to a Request for Information that went out in July 2017. Given the tenor of the current administration, I suspect any new revisions will be more business-friendly than the invalid 2016 revisions. Only time will tell.

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