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© 2014 Snell & Wilmer 1 PACE Conference 2014 Labor, Employment, and Immigration Law Update Manuel H. Cairo, Snell & Wilmer LLP
© 2014 Snell & Wilmer 2 Agenda © 2014 Snell & Wilmer Themes & Trends Labor & Employment – Pregnancy Discrimination Act (“PDA”) – Family and Medical Leave Act (“FMLA”) – Administrative Agency Rule Making – Multi-State Issues – Pending Cases – Special Considerations Immigration: Worksite Enforcement – Enforcement – E-Verify and Form I-9 – The Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) – Legislation
© 2014 Snell & Wilmer 3 Themes Political impasse Reliance on aggressive administrative agencies Patchwork of state-by-state legislation © 2014 Snell & Wilmer
4 Labor & Employment
© 2014 Snell & Wilmer 5 Labor & Employment: PDA PDA – On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued guidelines drawing inspiration from the Americans with Disabilities Act – Guidelines state “an employer must provide light duty for pregnant workers on the same terms that light duty is offered to employees injured on the job who are similar to the pregnant worker in their ability or inability to work” Young v. United Parcel Svc.: Supreme Court of the United States (“SCOTUS”) will address in its term
© 2014 Snell & Wilmer 6 Labor & Employment: FMLA FMLA – FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave, for certain family and medical reasons Definition of “spouse” Designation of leave
© 2014 Snell & Wilmer 7 Labor & Employment: FMLA Definition of “spouse” – The U.S. Department of Labor’s Wage and Hour Division (“DOL”) announced a Notice of Proposed Rulemaking to revise the definition of spouse in light of the SCOTUS’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act unconstitutional – DOL proposes to redefine the definition of spouse so that eligible employees in legal same-sex marriages will be able to take FMLA leave Marriage legal if legal in the “place of celebration,” not “state of residence”
© 2014 Snell & Wilmer 8 Labor & Employment: FMLA Designation of leave – Employer must notify employee of eligibility to take FMLA leave when: Employee requests FMLA leave, or Employer acquires knowledge that employee’s leave may be for FMLA-qualifying reason. 29 C.F.R. § (b).
© 2014 Snell & Wilmer 9 Labor & Employment: FMLA Employer’s obligation to designate FMLA leave – “The employer is responsible in all circumstances for designating leave as FMLA-qualifying.” – “Once the employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee as provided in § (d).” 29 C.F.R. § (d), (a).
© 2014 Snell & Wilmer 10 Labor & Employment: FMLA Escriba v. Foster Poultry, Inc., 743 F.3d 1236 (9th Cir. 2013) Facts: – Escriba requested two weeks of vacation to care for sick father – Employer asked if she needed more time off; she said no – Company policy: Must use paid vacation time concurrently with FMLA leave – Escriba took 2 weeks of vacation, but failed to return – Terminated for violating “three day no-show, no-call rule” – Escriba sued under FMLA and California family leave law Claim: Foster Poultry interfered with FMLA rights by failing to designate her time off as FMLA-protected leave
© 2014 Snell & Wilmer 11 Labor & Employment: FMLA Escriba v. Foster Poultry, Inc., 743 F.3d 1236 (9th Cir. 2013) Holding: – Termination was lawful; did not interfere with FMLA – Escriba elected not to take FMLA leave. Her time off was not protected under FMLA – “[A]n employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.” – “By declining to take FMLA leave and subsequently requesting it at a later date, an employee can first take paid vacation, after which that employee would still have the full 12 weeks of FMLA leave remaining.”
© 2014 Snell & Wilmer 12 Labor & Employment: Administrative Agency Rule Making Executive Orders and ban sex-based discrimination and discrimination against lesbian, gay, bisexual, and transgender employees and applicants – Office of Federal Contract Compliance Programs’ (“OFCCP”) August 19, 2014 directive clarifies that sex-based employment includes gender identity and transgender status Executive Order prohibits federal government contractors from disciplining employees for inquiring about, discussing, or disclosing compensation New affirmative action plan rules for veterans and disabled workers On October 3, 2014, OFCCP announced it will require contractors to provide more detailed compensation data at the start of an audit
© 2014 Snell & Wilmer 13 Labor & Employment: Administrative Agency Rule Making Executive Order – Final rules issued October 1, 2014, publication expected October 7, 2014 – Minimum wage goes to $10.10/hour effective January 1, 2015; tipped employee goes to $4.90/hour – Covers only federal government contractors and subcontractors: Construction Contracts (Davis-Bacon Act) Service contracts (Service Contract Act) Concessions contracts – Applies only to “new contracts” ‒ must result from a solicitation issued on or after January 1, 2015
© 2014 Snell & Wilmer 14 Labor & Employment: Multi-State Issues Minimum Wage – 22 states have minimum wage higher than federal minimum – 19 states have minimum wage for tipped workers at $2.13/hour Medical and Recreational Marijuana – Nearly half of the states now permit medical marijuana – At least five states protect employees (AZ, ME, DE, CT, MN)
© 2014 Snell & Wilmer 15 Labor & Employment: Multi-State Issues Map Key Medical marijuana legalized Marijuana legalized for medical/recreational use No laws legalizing marijuana
© 2014 Snell & Wilmer 16 Labor & Employment: Multi-State Issues Medical and Recreational Marijuana – Positive tests up first time in more than a decade* 3.7% positivity rate 5.7% increase from 2012 to 2013 – Marijuana is most common cause Increased by 6.2% from 2012 to 2013 Increased 5.6% in safety-sensitive positions – Recreational states CO up 20% from 2012 to 2013 WA up 25% from 2012 to 2013 *See Quest Diagnostic Drug Testing Index
© 2014 Snell & Wilmer 17 Labor & Employment: Multi-State Issues Sexual Orientation and Gender Identity – About half of the states ban sexual orientation and gender identity discrimination – Fewer states ban sexual orientation discrimination but not gender identity discrimination – About 19 states issue marriage licenses to same sex couples – October 6, 2014: SCOTUS announced it will not hear cases from five states seeking to keep their same-sex marriage bans It clears the way for bans to be lifted in those five states Six additional states could have bans lifted, too The number of states permitting same-sex marriage should increase to 30
© 2014 Snell & Wilmer 18 Labor & Employment: Multi-State Issues Fair Credit Reporting Act and state law variants “Ban-the-Box” on pre-offer criminal background inquiries – EEOC’s View of Criminal Background Inquiries
© 2014 Snell & Wilmer 19 Labor & Employment: Undecided Cases Supreme Court of the United States ( Term) – Integrity Staffing Solutions, Inc. v. Busk: Deciding whether time spent in security screenings is compensable under the FLSA, as amended by the Portal-to-Portal Act – Mach Mining v. EEOC: Deciding whether a court may review and force the EEOC’s statutory duty to conciliate in good faith before filing suit – Nickols v. Mortg. Bankers Ass’n: Deciding whether agencies subject to the Administrative Procedures Act are prohibited from revising their interpretative rules unless such revisions are made through notice-and-comment rulemaking
© 2014 Snell & Wilmer 20 Labor & Employment: Undecided Cases Other courts – EEOC v. Erie Strayer Co.: Deciding whether employers may require employees to reveal the specific nature of the employee's medical illness for purposes of having sick leave count as an excused absence – EEOC v. Orion Energy Sys.: Deciding whether an employer violated the ADA by penalizing an employee who declined to participate in a company-sponsored wellness program by requiring the employee to pay the entire healthcare insurance premium and fee for non- participation
© 2014 Snell & Wilmer 21 Labor & Employment: Special Considerations Independent Contractors – Classifying individuals as independent contractors to gain a competitive advantage Taxes, workers comp., benefits, immigration, wages, etc. – Factors vary considerably but include at least the following: The extent to which the work performed is an integral part of the employer’s business Whether the worker’s managerial skills affect his or her opportunity for profit and loss The relative investments in facilities and equipment by the worker and the employer The worker’s skill and initiative The permanency of the worker’s relationship with the employer The nature and degree of control by the employer
© 2014 Snell & Wilmer 22 Labor & Employment: Special Considerations Typical FLSA Problems: – Failure to record all hours actually worked to include time spent working before or after the shift – Shorting of hours by using terms such as down time or rain delay – Failure to compensate for meal breaks where the employee is not completely relieved of all duties – “Banking” of overtime hours or payment of overtime in the form of “comp time” – Failure to combine the hours worked for overtime purposes by an employee in more than one job classification for the same employer within the same workweek – Failure to segregate and pay overtime hours on a workweek basis when employees are paid on a bi-weekly or semi-monthly basis – Failure to pay for travel from shop to work-site and back – Exempt versus Non-exempt – Record keeping
© 2014 Snell & Wilmer 23 Immigration: Worksite Enforcement
© 2014 Snell & Wilmer 24 Worksite Enforcement Continued focus on criminal prosecutions – Since 2008, approximately 6,000 individuals arrested; 135 were employers Continued focus on using civil and administrative tools – From FYs 2003 through 2008, ICE issued approximately $1.5 million in fines – From FYs 2009 through 2012, ICE issued approximately $31.2 million in fines Approximately 9,140 administrative inspections See Department of Homeland Security Office of Inspector General, OIG-14-33, U.S. Immigration and Customs Enforcement’s Worksite Enforcement Administrative Inspection Process (2014).
© 2014 Snell & Wilmer 25 Worksite Enforcement Fiscal YearFinal Orders Received Initial NIF Amount* Final Order Amount* Reduction in Fine to Final Order Amount in Millions % $1.59$1.03$0.5635% $12.98$6.96$6.0246% $16.30$10.46$5.8436% $21.85$12.72$9.1342% TOTAL1,174$52.72$31.17$ See Department of Homeland Security Office of Inspector General, OIG-14-33, U.S. Immigration and Customs Enforcement’s Worksite Enforcement Administrative Inspection Process (2014). *Amounts in millions
© 2014 Snell & Wilmer 26 Worksite Enforcement Small and large employers are subject to inspection Targeted industries: – National Security – Public Safety – Infrastructure (18 principal sectors) See Department of Homeland Security Office of Inspector General, OIG-14-33, U.S. Immigration and Customs Enforcement’s Worksite Enforcement Administrative Inspection Process (2014).
© 2014 Snell & Wilmer 27 Worksite Enforcement: E-Verify and Form I-9 E-Verify – “Further Action Notice” to make addressing TNCs more efficient – New tool to block the use of fraudulent SSNs – E-Verify “RIDE” program – State and/or local requirements Form I-9 – Electronic Form I-9 systems – Verification procedures for remote employees
© 2014 Snell & Wilmer 28 Worksite Enforcement: Anti-discrimination OSC’s Technical Assistance Letters – Employers should NOT: Request original employment eligibility documents during an internal audit because of unclear or missing copies Use E-Verify and SSNVS to pre-screen job applicants Use an electronic Form I-9 system that prepopulates Section 1 Reverify conditional I-551 Permanent Resident Cards Share Forms I-9 with third parties
© 2014 Snell & Wilmer 29 Worksite Enforcement: Legislation Border Security, Economic Opportunity and Immigration Modernization Act of 2013 (S. 744) – Form I-9 here to stay – Mandatory E-Verify – Use of documents with enhanced security features – Incorporation of tools to combat use of fraudulent documents – Higher penalties – Increases in enforcement personnel and funding – Employer protections – Increases in worker protections When will S. 744 pass?
© 2014 Snell & Wilmer 30 Q&A Manuel H. Cairo
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