emerging issues in labor law, immigration, and social …...ead expiration will match h-4 status...

Emerging Issues

In Labor Law,

Immigration, and

Social Media

Presented by Stuart Newman,

James W. King and Colleen Regan

July 15, 2015

Labor Law Update

Stuart Newman July 2015

©2015 Seyfarth Shaw LLP

NLRB Expedited Election Rules

• New Rules designed to shorten time period from petition

to election less than 25 days

• New Rules will require much faster employer action

• Notice of petition posted within 2 days of petition

• Pre-election hearing scheduled within 8 days of petition

• Employer position statement on potential election issues due

within 7 days, including preliminary voter list

• Final voter eligibility list due within 2 days of direction of election

and must include phone numbers and email addresses

3


How the New Rules impact us:

• How the New Rules impact us:

• Shorter time period between petition and election is designed to

favor unions and increase union “win” rates

• New and compressed NLRB filing deadlines require more

advance preparation to identify “supervisors” and define “unit”

issues

• Shorter “campaign period” requires a better “early warning

system” and faster HR response to warning signs

• Heightened risk warrants review of existing supervisor training

programs and employee engagement strategies

4


How and Why the NLRA Applies to All

Employers and Employees

• The NLRA applies to all employers, including union and

non-union employers.

• Section 7 of the NLRA gives employees the right

• To form, join or assist unions.

• To bargain collectively through “representatives.”

• To engage in other “concerted activities.”

• to bargain, or

• for other mutual aid or protection.

• To refrain from such activities

• It is unlawful to interfere with, restrain or coerce

employees in the exercise of their Section 7 right to

engage in protected concerted activity

5


Employer Policies/Handbooks

• A Rule violates the Act if it “reasonably tends to chill employees in

the exercise of their Section 7 rights.”

• Historically, the NLRB has said that it must

(1) Give a rule a reasonable reading;

(2) Refrain from reading particular phrases in isolation;

(3) Read the rule in the context in which it appears; and

(4) Not presume improper interference with employee rights.

• Even if a rule does not explicitly restrict Section 7 activities, it is

unlawful if

(1) Employees “reasonably construe” it as prohibiting their rights;

(2) The rule is promulgated in response to union activity;

(3) The rule has been applied to restrict the exercise of Section 7 rights.

• Recently, the Board has seized on ambiguities to find violations.

6


Report of the General Counsel –

Employer Rules and Policies

• Confidentiality Rules

• Do not discuss "customer or employee information" outside of

work, including "phone numbers [and] addresses.” (Unlawful).

• No unauthorized disclosure of "business 'secrets' or other

confidential information.“ (Lawful)

• Employee Statements

• "[B]e respectful to the company, other employees, customers,

partners, and competitors." (Unlawful)

• No "rudeness or unprofessional behavior toward a customer, or

anyone in contact with" the company. (Lawful)

• No "unwanted, offensive, or inappropriate" e-mails. (Unlawful)

• No "use of racial slurs, derogatory comments, or insults.” (Lawful)

• Confidentiality Rules

7



Employer Rules and Policies, cont.

• Statements to Media/ Outside Parties

• Employees are not authorized to speak to any representatives of

the media about company matters unless authorized and must

refer all media inquiries to the Company. (Unlawful)

• The company strives to effectively manage crisis situations. The

company will respond to the media only through the designated

spokespersons. (Lawful)

• Use of Company IP

• Do "not use any Company logos, trademarks, graphics, or

advertising materials" in social media. (Unlawful)

• "Respect all copyright and other intellectual property laws, for the

Employer’s protection as well as your own. (Lawful).

8



Employer Rules and Policies, cont.

• Photography, Recording

• "Taking unauthorized pictures or video on company property" is

prohibited. (Unlawful)

• No cameras are to be allowed in the store or parking lot without

prior approval from the corporate office. (Lawful)

• Leaving Work

• "Walking off the job ..." is prohibited. (Unlawful)

• Entering or leaving Company property without permission may

result in discharge.“ (Lawful)

9


Questions?

10

Immigration Update

James W. King July 2015


Immigration Executive Actions?

• Three “buckets”

(1) Deferred Action program for

undocumented individuals

(2) Border security and enforcement changes

(3) Improvements to the processing of business and

family immigration benefits

12


Why is President Obama taking

this action now?

• Nearly 20 years since last major immigration package

• 12 million living in shadows without status

• Polls support immigration reform

• Congressional inaction in spite of bipartisan efforts,

Senate victory in 2012

13


What is the legal authority for the

President to act?

• Federal immigration statutes and regulations

• Prosecutorial discretion

• Precedents from former Presidents

14


How will these changes be implemented?

• A mixed bag: some guidance forthcoming via memos and

policy guidelines, some changes will require rule-making

• Can these actions be reversed or thwarted?

(1) Lawsuits – on-going (Fifth Circuit)

(2) De-funding agencies – tried and failed

(3) A post Obama administration can “reverse course”

15


DACA Expansion and DAPA Program

Defining our terms:

• DACA = Deferred Action for Childhood Arrivals

Existing DACA program expanded by removing age limit

Will cover about 300,000 new DACA beneficiaries

• DAPA = Deferred Action for Parental Accountability

Undocumented parent of a USC or LPR child born before 11/20/2014

and living in U.S. since 1/1/2010 can obtain three-year work permit

Will benefit about 4 million individuals

16


Expanded DACA/New DAPA Programs

Enjoined

• 26 States sue to stop Obama administration from

deferred action program implementation

• Injunction issued

• But, in meantime, 2,000 individuals got three-year EADs

• Documents must be returned if issued after 2/16/15

• Potential I-9 consequences

17


What might DACA and

DAPA mean for employers?

• So-called “Honesty Policies” will be tested

• Certain industries may have a blanket

“forgiveness” policy: But will this impact

the application of the Honesty Policy in other arenas?

• California Labor Code § 1024.6 specifically prohibits an employer

from taking adverse action or retaliating against an employee

because the employee changed personal information

18


The Form I-9:

New approaches to a 27-year-old form

• Per DHS guidance on DACA:

Employer will need to create new I-9 and

attach it to old I-9

• Employer also must run new E-Verify query:

But will this flag the issue to ICE?

• For unionized employers: Collective bargaining agreement

may be problematic in terms of limiting use of a new I-9

and/or E-Verify.

19


The employer’s role in this

“brave new world” of DACA and DAPA

• Employer community now comfortable with the formulation, “Do you now or in the future need an employer to sponsor you for work authorization”

• Emergence of a large class of workers who do not need sponsorship but whose DACA/DAPA status (and employment authorization) is at risk

• Can an employer refuse to hire DACA or DAPA beneficiaries?

• DACA/DAPA beneficiaries are not a “protected class” for citizenship discrimination purposes

• What about national origin and alienage discrimination?

20


What are the potential risks

to employers?

• Is there a risk that a worker’s unauthorized status could be “imputed” to the employer of a DACA or DAPA individual?

21


Possible New Class of Workers: H-4

• Expanding work authorization to H-4 spouses:

Where H-1B spouse has an approved I-140 immigrant visa petition OR

Where H-1B spouse has been granted an H-1B extension beyond 6 years

First approvals are in (filings as of May 26, 2015)

EAD expiration will match H-4 status expiration

22


Improving the Green Card Program

• Form I-485 adjustment of status (“AOS”) basics

• Can’t file until a green card (“GC”) number is available

Hard to promote employee into new role

Spouse and kids can’t work

Employer has to continue to pay for work permit renewals

Demoralizing for employee

• Change in regulations required; final rule expected by late 2015

• Would affect about 500,000 people

23



• Proposal to allow foreign national employees to file the AOS before a green card number is current, so long as visa number is not “unavailable”

• Proposal to interpret Visa Bulletin differently to reduce green card quota backlogs, prevent “waste” of GC numbers

• Challenges: could accelerate visa number movement, thereby putting pressure on employers to promote FNs into the GC role and/or pay the GC salary earlier than anticipated

• Benefits of AOS “early filing” to employees:

Work and travel documents for family members

AC-21 portability enables career mobility (but could hurt sponsoring employers)

24



Clarification of eligibility for AC-21 portability

• “Same or similar occupation” clarity

• Could enhance worker mobility

• Employers could lose the value of sponsorship with earlier employee resignations

25


F-1 student work authorization

improvements

• ICE and USCIS will develop proposed regs for Notice and Comment, with

these potential benefits to STEM students:

Extend the 17-month term of STEM Optional Practical Training (“OPT“) work

authorization

Expand fields of study that will qualify for STEM OPT

Allow STEM OPT even if an intervening non-STEM degree is in the picture

Grant “dual intent” to F-1 students

• Regs may require stronger “nexus” between OPT employment and

university field of study, better safeguards for U.S. workers

• Current WashTech lawsuit challenges Federal government OPT program,

affords IT workers “standing” to sue

26


PERM modernization

• At the 10-year mark: system is dysfunctional, broken,

and misaligned with employer real-world recruitment

practices

• DOL seeking input from stakeholder community:

“modernized recruitment”

• Possibilities for Premium Processing

• Options to cure “non-material errors”

27


For more information

On-Line Resources:

www.immstar.com

Executive Immigration Action Source Materials

(courtesy of the American Immigration Lawyers Association)

Worksite Harmony and the President’s Executive Actions:

It’s All about Immigration Timing

(from www.nationofimmigrators.com, Dec. 3, 2014)

28

http://www.immstar.com/http://www.immstar.com/http://www.aila.org/content/default.aspx?bc=6755|37861|47963http://www.nationofimmigrators.com/i-9s/worksite-harmony-its-all-about-immigration-timing/http://www.nationofimmigrators.com/i-9s/worksite-harmony-its-all-about-immigration-timing/http://www.nationofimmigrators.com/i-9s/worksite-harmony-its-all-about-immigration-timing/http://www.nationofimmigrators.com/i-9s/worksite-harmony-its-all-about-immigration-timing/http://www.nationofimmigrators.com/i-9s/worksite-harmony-its-all-about-immigration-timing/


Questions?

29

Social Media

Update

Colleen Regan

July 2015


Issues Arise When Social Media Used . . .

• By employer in making hiring decisions

• By employer when conducting internal investigations

• By employee when talking about work or disclosing

work-related information

• Concerns include:

• employer’s potential liability for employee statements

• (e.g., threats of violence, harassment or discrimination)

• criticism or defamation of employer

• employee’s freedom of speech

• employee’s NLRA rights

31


National Labor Relations Act

• Section 7 of the NLRA prohibits employers from

enacting policies that stifle or prevent employees from

engaging in "concerted activity" for "mutual aid and

protection."

• According to the NLRB, there are two main points to

consider:

• Employer policies should not be so sweeping that they chill the

kinds of activity protected by federal labor law, such as the

discussion of wages or working conditions among employees.

• An employee's comments on social media are generally not

protected if they are mere gripes not made in relation to group

activity among employees or working terms and conditions.

32


March 18, 2015 General Counsel Memo

Addressing Employer Rules

• Cannot have blanket rules on discussing “employee information”

• Cannot require employees to only be respectful

• Cannot prohibit behavior up to but not quite insubordination

• Cannot require refraining from damaging company reputation or acting

not in company’s best interest

• Cannot prohibit employees from disagreeing with each other, even

with strong language

• Cannot prevent employees from speaking to the media on their own or

other employees’ behalf

• can stop them from relaying a “company official position”

• Cannot prevent fair use of logos and trademarks

• Cannot prevent pictures or videos on all company property

• Cannot prohibit “walking off the job” as expression of concerted activity

33


Protected Activity & Social Media

• An employee is protected under the NLRA when engaging

in a discussion of work conditions with other coworkers on

social media.

• Sharing information about wages

• Complaining about policies or managers

• Displaying union-related insignias/ logos

• Expressing union support

• Attempting to organize a union

• Otherwise discussing employment terms

• Examples Include:

• Facebook post with comments/”likes”

• Twitter discussion and retweets

• Blogs with comments

34


Anthem’s Social Media Policy - 1

35



36



37



38



39



40


Legal Issues For

Telecommuting / Work From Home

• Wage and hour issues

• overtime and off-the clock

• meal periods and rest breaks

• record-keeping

• Safety issues

• Workers’ compensation/liability issues

• Posting requirements

• Reimbursement of business expenses

• Confidentiality and privacy

• Third-party privacy rights

• Across state lines—which law applies?

• Reasonable accommodations

41


Questions?

42


Presenters from Seyfarth Shaw

43

Stuart Newman, Partner – Atlanta, GA

[email protected]

James W. King, Partner – Atlanta, GA

[email protected]

Colleen Regan, Partner – Los Angeles, CA

[email protected]