DHS Issues New I-9 Manual

Following its recent release of a new I-9 form, the U.S. Department of Homeland Security has now announced that a new I-9 manual has been released.  The manual is a useful guide to some of the more obscure procedures involved with the I-9 form.  The manual can be found here. 

New I-9 Form Released

On Friday, March 8, 2013, the U.S. Department of Homeland Security finally issued the long-awaited updated I-9 Form.  The old form can still be used for two months until May 7, 2013.  The new I-9 form is available here.

The I-9 form is used to verify work authorization of new hires in the U.S. as well to re-verify work authorization of foreign nationals working with temporary work authorization.  The new and old forms are very similar in content.  However, unlike the old one-page form, the new form is 3 pages long and easier to understand and fill out.  The new form also clearly differentiates between employees who only need to be verified once (U.S. Citizens and permanent residents) and foreign nationals who are here temporarily and must be re-verified whenever their work authorization expires. 

Regarding the list of acceptable documents that an employee tenders, the new form emphasizes that if a social security card is selected by the employee as a List C document, only an unrestricted social security card is acceptable.  If the social security card has any restrictive language on it, it cannot be used for I-9 purposes since the individual may have obtained it when they had temporary work authorization and now no longer do. 

Although there is a Spanish version of the I-9 form as well, it may only be used in Puerto Rico. 

As a reminder, at the time of hire, employers must inspect an original document chosen by the employee from List A, or one each from Lists B and C.  It must be done within the first 3 days of hire.  It is recommended that copies of the documents be attached and retained to the I-9 as further proof of the good faith efforts by the Employer to comply with the mandate.  If the documents appear to be authentic, then the employer will not be liable if it later turns out they are not authentic.  The I-9 forms should be retained for 3 years after termination of employment.  Employers who have enrolled in E-Verify must still have a paper or digital I-9 on file for every employee. 

Employers are encouraged to periodically audit their I-9’s and take corrective action where errors are found. 

Reminder:  FMLA-Covered Employers Must Post New FMLA Poster

In recent years, the FMLA has been amended several times, most recently in 2009 under the National Defense Authorization Act and Airline Flight Crew Technical Corrections Act.  While the most recent amendments relate to rarely used FMLA provisions, the DOL recently approved new regulations covering these provisions, and of even more significance to all FMLA-covered employers, issued a new FMLA poster effective today, March 8, 2013.  The new poster is available here.  All employers covered by the FMLA should begin using the new poster immediately.  For more information on the most recent amendments to the FMLA, see our prior post here.  Additional information relating to the new regulations is available on the DOL's website here.

Court Declares Obama’s Recess Appointments to the NLRB Unconstitutional

As readers of this blog know, over the last year the NLRB has issued a number of decisions unfavorable to non-unionized employers, including decisions relating to at-will employment policies, social media policies and related terminations, and arbitration policies.  Some of these decisions were made by an NLRB Board, comprised largely of members appointed by President Obama as recess appointments in January 2012.  This means that the members were not confirmed by the Senate as typically required.  Senate Republicans refused to confirm President Obama's NLRB appointments at the time, so President Obama decided to get around the Republicans' obstacle by exercising a right to appoint people to fill vacancies in government agencies during a tiime when Senate approval cannot be obtained due to the Senate being in recess.  A legal challenge was mounted to the President's recess appointments to the NLRB on the ground that the Senate was not really in recess at the time these appointments were made, and thus the appointments are unconstitutional.  Today, the D.C. Circuit Court of Appeals agreed.  In Noel Canning v. NLRB, the Court held that "recess" means the period of time during which the Senate is formally adjourned following a two-year session.  It does not mean any period of time when the Senate is not in session for one or more days (such as was the case last January when the President made the "recess" appointments).  As such, the Court held that the NLRB recess appointments were unconstitutional.  This is hugely significant given that the NLRB needs at least three members to act, and three of the four members of the NLRB in 2012 were recess appointments--likely rendering invalid all NLRB decisions issued during this time.

It is anticipated that the D.C. Circuit decision will be appealed to the United States Supreme Court.  We will post developments here.

California Adopts New Regulations Governing Pregnancy Disability Leaves

California's Fair Employment and Housing Commission recently proposed new pregnancy disability regulations.  These proposed regulations underwent rounds of public comment and revision, but were recently finalized and approved by California's Office of Administrative Law.  As such, the new regulations take effect December 30, 2012.  The new regulations are available here.  California employers with 5 or more employees are required to provide up to 4 months of pregnancy disability leave to employees disabled by pregnancy or related conditions and there is no length of service requirement to be eligible for this leave.  The new regulations detail the process an employer is required to follow in accommodating such leave requests, from initial certification through reinstatement.  The regulations also clarify how "four months" is calculated for purposes of identifying the maximum amount of leave available to full-time and part-time employees.  The regulations further make clear (based on a recently enacted California law) that employers are required to maintain group health benefits under the same terms as if the employee was actively reporting to work for up to 4 months, and that this requirement is in addition to any additional obligation to maintain health benefits during an an additionally approved FMLA/CFRA leave of up to 12 weeks.  The new regulations contain a great amount of detail and guidance for employers trying to manage this leave process.  Employers are advised to review the rules and their policies and practices to ensure compliance.

The FEHC also has proposed regulations pending on disability (non-pregnancy) leaves.  Those rules are not yet final, but are available here for employers who are interested in reviewing and possibly providing comment and/or proposed changes to the FEHC. A public comment period is currently underway through December 17, 2012.  We will post developments here.

Minimum Wage Increasing for Employees in San Francisco and San Jose

California employers with employees in the cities of San Francisco and San Jose should take note of minimum wage increases for these cities taking effect in 2013.  San Francisco passed its minimum wage ordinance a few years ago, but the minimum wage is subject to adjustment each year based on the cost of living.  Effective January 1, 2013, the minimum wage for employees who perform at least two hours of work per week in the City of San Francisco is $10.55 per hour (up from $10.24/hour in 2012).

This week, San Jose voters approved a local minimum wage for the City of San Jose as well.  With the passage of Measure D, the minimum wage for employees working in San Jose will be $10.00 per hour.  The new San Jose minimum wage takes effect 90 days after the election results are certified, which means approximately March 2013.

The state minimum wage otherwise remains at $8.00 per hour. 

NLRB Issues Some Positive Guidance on At-Will Employment Policies

Yesterday, the NLRB’s Acting General Counsel issued advice memos analyzing whether two employers’ at-will policies violated employees’ Section 7 rights under the NLRA.  In both instances, the AGC found that the at-will policies did not violate the NLRA.  These findings are in contrast to a decision earlier this year by a NLRB administrative law judge finding that a fairly standard at-will employment policy maintained by American Red Cross Arizona violated Section 7.  So how do employers reconcile this, and do at-will employment policies really run afoul of Section 7 rights?  Yesterday’s newly issued advice memos shed a little more guidance on the issue. 

In the first case, involving Rocha Transportation, the employer’s at-will policy provided that employment is at-will, that nothing in the handbook should be interpreted to limit the right to terminate the employment relationship at-will, and that only the president of the company has the authority to enter into an agreement for something other than at-will employment.  An employee challenged this policy as a violation of the NLRA, arguing that the policy was overbroad and reasonably operated to “chill” employees’ exercise of Section 7 rights to engage in concerted activity to organize and try to achieve something other than at-will employment.

In the second case, involving Mimi’s Café, the at-will employment policy contained similar language but stated that “no representative of the company” has authority to enter into any agreement altering the at-will employment relationship.  As was the case with Rocha Transportation, a Mimi’s employee charged that Mimi’s policy was overbroad and would reasonably chill employees’ Section 7 right to select union representation and engage in collective bargaining.

The AGC rejected both employees’ contentions and found that the at-will policies did not violate the NLRA.  The AGC reasoned that the policies do not expressly restrict Section 7 activity and there was no evidence that the policies were promulgated in response to such activity or in an effort to restrict such activity.  The AGC further found that employees would not reasonably interpret the policies as restricting Section 7 rights.  The AGC reasoned that nothing in the policies required the employees to agree that they could not seek to change their at-will employment status, nor did the policies state that at-will employment could never be changed.  Instead, the policies simply operated to prevent the employers’ representatives from entering into agreements providing for something other than at-will employment.

So what about the earlier American Red Cross case?  In that case, the employer’s at-will policy was set forth in a written acknowledgement form that employees had to sign and which stated:  “I agree that the at-will employment relationship cannot be amended, modified or altered in any way.”  The ALJ in that case held that the policy would reasonably chill employees interested in exercising Section 7 rights to select a union and engage in collective bargaining that might “amend, modify or alter” the at-will nature of the employment relationship.  As such, the ALJ found that the policy violated the NLRA. 

In yesterday’s advice memos, the AGC did not expressly disagree with the ALJ’s conclusion in the American Red Cross case (though the AGC carefully noted that the American Red Cross matter settled before Board review, somewhat de-valuing the ALJ’s opinion).  Instead, the AGC distinguished the American Red Cross case by highlighting the fact that the at-will policy in that case expressly stated that at-will employment could never be altered (implicity, including through union representation), whereas the policies before the AGC did not contain that broad of a statement; they simply restricted the authority of the employers’ representatives from entering into private agreements for something other than at-will employment.

Employers may wish to review and revise their at-will employment policies in light of the NLRB’s guidance and the fact that the NLRB appears intent on continuing to attack and invalidate neutral employment policies that really have nothing to do with union rights or the right to engage in concerted activity.  All of the decisions referenced in this post are available in full on the NLRB’s website by clicking here.

Reminder About Employee Time Off to Vote

With the upcoming general election on November 6, California employers are reminded that California law provides employees with up to two hours paid time off to vote if an employee provides two working days' notice of the need for time off on the ground that he or she does not have sufficient time to vote outside of normal working hours.  With the polls open from 7:00 a.m. to 8:00 p.m., most employees should have sufficient time outside of regular working hours to vote, but employers need to be mindful of the need to accommodate any employees who do not have sufficient time.  Employers may require that the time off be taken at the beginning or end of the employee's shift.  California employers are also required to post a voting rights notice 10 days before the election.  Notices are available in English and Spanish on the California Secretary of State website here.  

Activist NLRB Continues Effort to Regulate Employer Policies

In the past 60 days, the NLRB has issued two decisions further striking down various employer policies and practices as violating Section 7 of the NLRA.  In the first case, Banner Health Systems (July 30, 2012), the NLRB held that an employer’s practice of urging employees not to discuss an ongoing investigation violated the NLRA.  In the second case, Costco Wholesale Corporation (September 7, 2012), the NLRB struck down various Costco policies regulating employees’ electronic posting and discussion of certain information.

In Banner Health, the employer’s human resource department, like most, had a practice of urging complainants and witnesses interviewed as part of an investigation not to discuss the matter with coworkers during the pendency of the investigation.  The purpose of the practice obviously was to protect the integrity of the investigation.  The NLRB held that this generalized concern with protecting the integrity of investigations was insufficient to justify the infringement on employees’ Section 7 right to engage in concerted activity for mutual aid and protection (such as discussing their wages and terms and conditions of employment).  The NLRB did not say that requiring confidentiality during an investigation was always a violation of Section 7 rights, but said that blanket confidentiality rules were a violation.  According to the NLRB, the employer must determine, in the particular circumstances of any given investigation, whether confidentiality should be required because witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.  Given that one or more of these concerns are present in most investigations, employers and HR should not be afraid to continue urging confidentiality during investigations as appropriate.  Just document the reason for the confidentiality in the given investigation.

In Costco, the NLRB analyzed whether various written work rules limiting discussion and electronic posting of information violated employees’ Section 7 rights.  The NLRB struck down the following Costco rules:

• “unauthorized posting, distribution, removal or alteration of any material on Company property” is prohibited;
• Employees are prohibited from discussing “private matters of members and other employees . . . includ[ing] topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.;”
• “sensitive information such as membership, payroll, confidential financial, credit card numbers, social security number or employee personal health information may not be shared, transmitted, or stored for personal or public use without prior management approval;”
• Employees are prohibited from sharing “confidential” information such as employees’ names, addresses, telephone numbers and email addresses; and
• Employees are prohibited from “electronically posting [including online message boards and discussion groups] statements that “damage the company, defame any individual or damage any person’s reputation.”

The NLRB held that these broadly phrased prohibitions violated employees’ Section 7 rights because they could “reasonably be interpreted” as prohibiting employees from discussing their wages and other terms and conditions of employment with other employees and third parties, including union representatives.  The NLRB held that there was nothing in the rules that made clear that the rules were not intended to interfere with employees’ Section 7 rights.

Costco didn’t lose entirely, in case you were wondering.  The NLRB surprisingly approved one of Costco’s rules—a rule requiring employees to use “appropriate business decorum” in communicating with others.

Based on the reasoning of the Costco decision and the NLRB’s recent advice memoranda concerning social media policies, employers continue to be advised to review and revise their work rules and policies to try to minimize NLRB-related risk.  Employers should use limiting language in their policies to make clear that the restrictions are not intended to interfere with or chill employees’ Section 7 rights.  Beware, however, the NLRB’s AGC has opined that a boilerplate disclaimer at the end of a broadly worded policy does not suffice.

The NLRB decisions are available in full on the NLRB’s website here.

NLRB Continues to Try to Extend Its Influence on Non-Union Employers

Earlier this year, the National Labor Relations Board (NLRB) issued an administrative decision holding that standard at-will language in a non-union Employee Handbook violates section 7 of the National Labor Relations Act. The Employee Handbook stated “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” This is standard language in many employee handbooks (some employers write that it can only be modified by a writing signed by the employee and chief executive of the employer). The NLRB administrative law judge found that the language violates section 7 because employees who read it are very likely to believe that they cannot alter the at-will employment policy through collective bargaining or other forms of concerted activity. Subsequent to this decision, the NLRB issued a complaint against Hyatt Hotels on similar grounds. That complaint was resolved when Hyatt agreed to modify the at-will language in its handbook. From the author’s view, this decision and the NLRB’s position appears to be a stretch. However, right now it appears to be the only decision by the NLRB (or any other court or agency) on the issue. In addition, NLRB Acting General Counsel Lafe Solomon is reported to have publically commented in June that he believes that at-will handbook provisions prohibiting any change in the terms and conditions of employment except in a written document with a company executive violate the NLRA’s Section 7 right to participate in union-organizing activities. Thus, at a minimum, employers with standard at-will language like this in their employee handbooks should continue to monitor this situation and consider contacting their legal counsel to determine if any changes should be made to the at-will language in the handbook. The NLRB decision was issued by Gregory Meyerson, an administrative law judge with NLRB Region 28 in Arizona in the matter of American Red Cross Arizona and Lois Hampton and Hyatt Hotels Corporation and United Here International Union.