Is the Job Market Improving? For Some Folks, Yes

By Glenn Rissman on April 21, 2014 Posted in Immigration

Two weeks ago, the H-1B visa filing season kicked off and, within five days, the U.S. Citizenship and Immigration Services received about 175,000 H-1B petitions for 65,000 available H-1B visas, plus 20,000 H-1Bs set aside for foreign nationals who hold U.S. advanced degrees. Clearly, employers are looking to hire – at least highly skilled workers who hold a bachelor’s degree or higher. The situation was the same last year – within five days, USCIS had received enough H-1B petitions to meet the annual quota.

Who are these folks? To qualify for the H-1B, they must have a bachelor’s degree or the equivalent of a bachelor’s degree. Their prospective employers had to promise to pay them at least the prevailing wage, as determined by the U.S. Department of Labor or a wage survey that meets DOL standards. Because the annual H-1B quota only applies to foreign nationals who have not held H-1B visas in the past, there is a good chance that the foreign nationals attended university in the United States on student visas. Otherwise, they are looking to move to the United States. The graduates of U.S. schools may already be working for their prospective U.S. employer on a temporary work authorization available to foreign students. Granted, some of the 175,000 H-1B hopefuls may work for overseas consulting firms that plan to send them to the U.S. as consultants for U.S. businesses, but many of those folks probably have dreams of working directly for a U.S. employer and becoming a permanent resident of the United States. All of the H-1B candidates have some specialized knowledge and should all earn at least the same pay as their similarly situated co-workers, assuming the would-be employer is on the up and up.

Sexual Harassment Training for Congress: Necessary or a “Really Dumb Idea”?

By Andrew Rodman on April 16, 2014 Posted in Discrimination & Harassment, Employee & Management Counseling

It’s unfortunate, but it’s reality. The list of politicians engaging in sexual “shenanigans” — from President on down — continues to grow. Just last week news broke that 40-year old Vance McAllister, a newly elected member of the U.S. House of Representatives, was caught on surveillance video kissing Melissa Peacock, McAllister’s 33-year old female staffer, in his district office.

McAllister, who is married with 5 children, reportedly is long-time friends (or, more likely, no longer friends) with Peacock’s husband.

When the news spread and the video went viral, Representative Jackie Speier called for all House members, and their staffers, to attend mandatory sexual harassment training. Representative Speier declared, “[i]t is time for all of us to get trained – elected officials and their staffs – to recognize what sexual harassment is, and how to prevent it, and what to do if it happens.”

Economic Impact of Sony Open Tennis in Miami

By Robert Turk on April 14, 2014 Posted in Employment Contracts & Corporate Issues

Our Firm is an enthusiastic supporter of the Sony Open Tennis Tournament held on Key Biscayne every year. The Tournament recently concluded its 2014 play and we were curious about its impact on our local community.

So we asked Adam Barrett, Sony Open Tennis, Executive Vice President, for the stats. This year the Sony Open had 306,000 visitors; served 45,000 cups of coffee; and filled 15,000 hotel room nights booked directly through the Tournament. (There were many more guests who booked their rooms on their own.) There were 90 domestic hours of TV broadcasting the Tournament, and 190 countries broadcast 8,000 hours of total TV coverage overseas.

For those who are involved in Human Resources, the Tournament employed approximately 3,000 local folks and had an overall financial impact on the community of over $380 million. Mr. Barrett told us that this is the equivalent of having the Super Bowl in Miami every year. It is surprising to many that one 13-day event has such a big impact on so many.

We look forward to seeing you at Stearns Weaver Miller’s 24th Annual Labor and Employment Law Seminar at the Trump National Doral Hotel on May 1, 2014.

RAGE, Stigma, and… Paternity Leave

By Andrew Rodman on April 7, 2014 Posted in Disability & Leave, Legislation & Regulations

I’m enRAGEd (can’t you feel the “rage” in those CAPS). I don’t like to tell people what to do, but you should be enRAGEd as well. Why? Because the New York Mets’ second baseman Daniel Murphy missed the first 2 games of the baseball season – voluntarily. He wasn’t sick. He wasn’t injured. He just took the first 2 games off. Those first 2 games actually spanned a period of 3 days. Didn’t anybody tell Murphy that this is baseball, our national pastime?

You’re not enRAGEd yet, are you?

Well how about if I told you that Murphy missed those 2 games so that he could be with his wife as she gave birth, by C-section, to their first child? Yes, he actually chose to be present for his child’s birth instead of being present for games 1 and 2 of a 162-game season.

Still not enRAGEd? Well get ready for this.

Murphy was criticized — harshly — for choosing to be present for his child’s birth instead of playing second base. Murphy should be applauded, not criticized. Let me hear that RAGE!

Two Decisions About Arbitration Agreements Florida Employers Should Note

By Stearns Weaver Miller on April 2, 2014 Posted in Employment Litigation, Legislation & Regulations

Florida’s Supreme Court and the federal appeals court covering Florida recently issued opinions regarding the enforceability of arbitration agreements. The federal court opinion said that an arbitration agreement waiving an employee’s ability to bring a collection action under the Fair Labor Standards Act (“FLSA”) is enforceable. The state court opinion said that an arbitration provision in an English-language sales contract signed by a Spanish-speaking couple is not enforceable.

In Walthour v. Chipio Windshield Repair, the Eleventh Circuit court (the federal appeals court having jurisdiction over Florida) enforced the collection action waivers in the plaintiffs’ arbitration agreements. The plaintiffs, two manual laborers, had signed arbitration agreements that required them to arbitrate any kind of employment disagreement and that also barred them from bringing a claim as a plaintiff or class member in any class or representative proceeding. The plaintiffs brought a collection action under the FLSA for failure to pay the minimum wage and overtime. The trial court and Eleventh Circuit said that the plaintiffs had to arbitrate their claims and that they waived their right to bring a collective action against their former employer. The Eleventh Circuit’s decision is consistent with recent Supreme Court decisions enforcing arbitration agreements that have class action waivers. Nonetheless, the National Labor Relations Board continues to prosecute unfair labor practices charges against employers that require arbitration agreements with class action waivers.

In the state court case, Basulto v. Hialeah Automotive, LLC, the Florida Supreme Court held that an arbitration provision in a contract for the sale of a van was not enforceable where the buyers were only able to communicate in Spanish and the contract was in English. An automobile dealership had the plaintiffs sign a blank contract and told the plaintiffs that the dealership would insert the agreed-upon sales price and trade-in allowance later. The plaintiffs sued because the dealership allegedly filled in a lower trade-in allowance than the parties had agreed upon. The buyers tried to invalidate the requirement to arbitrate in the purchase agreement. The Florida Supreme Court held that there was no valid written agreement to arbitrate because there was no “meeting of minds” based on the trial court’s evidentiary findings that the buyers could not communicate in English, the documents they signed were in English, the documents were blank when signed and pertinent information was filled in after-the-fact, the dealership’s employees who presented the terms of the deal to the buyers in Spanish did not have an understanding of about arbitration, no one explained the rights the buyers were waiving and the dispute resolution provisions in the documents conflicted with one another. While not an employment case, employers should consider translating important agreements and policies for non-English speaking employees and taking time to explain them to all employees.

USCIS Again Extends TPS for Haitian Nationals

By Glenn Rissman on March 3, 2014 Posted in Immigration

On March 3, the U.S. Citizenship and Immigration Services (USCIS) extended the Temporary Protected Status designation for Haiti for a period of eighteen (18) months, from July 23, 2014 to January 22, 2016. Temporary Protected Status (TPS) is a temporary immigration status granted to eligible nationals of designated countries because the country has experienced temporary negative conditions, such as armed conflict or an environmental disaster, that prevent nationals of that country from returning safely or prevent the country from handling their return adequately. There are currently several countries designated for TPS, including El Salvador, Nicaragua, Honduras, and Haiti.

Qualifying individuals from Haiti may re-register for TPS status by filing Form I-821 during the period from March 3 to May 2, 2014. Applicants can also apply for a new Employment Authorization Document (EAD) by submitting Form I-765. The EADs of Haitians currently in TPS status will be automatically extended for a period of six months, through January 22, 2015. The automatic extension is limited to EADs with an expiration date of July 22, 2014. The EADs must also bear the designation “A-12” or “C-19” on the face of the card under “Category” to qualify for the six month extension. Eventually, qualified individuals will receive new EADs valid to January 22, 2016.

When completing Form I-9 using an automatically extended EAD prior to
January 22, 2015, for a new hire, the USCIS advises as follows:

1. In Section 1, the employee checks “An alien authorized to work,” writes the A-number in the first space, and writes the automatic extension date (January 22, 2015) in the second space.

2. In Section 2, the employer records the document title, records the document number, and records the automatically extended EAD expiration date (January 22, 2015).

After January 22, 2015, the employer will have to re-verify the employee’s authorization to work.

For an existing employee who presented a TPS EAD that was valid at the time of hire, has a printed expiration date of July 22, 2014, and is now automatically extended for six months, the USCIS recommends the following Form I-9 procedure:

1. In Section 1, the employee draws a line through the expiration date in the second space, writes January 22, 2015 above the previous date, writes “TPS Ext.” in the margin of Section 1, and initials and dates the correction.

2. In Section 2, the employer draws a line through the expiration date written in Section 2, writes January 22, 2015 above the previous date, writes “TPS Ext.” in the margin of Section 2, and initials and dates the correction.

After January 22, 2015, the employer must re-verify the employee’s authorization to work.

Employers who participate in E-Verify will receive a “Work Authorization Documents Expiring” case alert. For existing employees with TPS EADs that have been automatically extended, USCIS instructs employers to disregard the E-Verify case alert and follow the instructions above explaining how to correct the Form I-9.

USCIS reminds employers that they cannot require employees to present proof of their Haitian citizenship.

NLRB Judge Nixes Part of Hospital’s Code of Conduct

By Stearns Weaver Miller on February 18, 2014 Posted in Labor Law, Legislation & Regulations

teamwork

A National Labor Relations Board (NLRB) administrative law judge recently found two code of conduct rules that prohibited comments exceeding “the bounds of fair criticism” and behavior that “is counter to promoting teamwork” violated the National Labor Relations Act (NLRA). Click here for copy of the case. The case arose after the William Beaumont Hospital terminated two senior employees, a nurse and a surgical technician, for “negative, intimidating and bullying behavior” in violation of the code of conduct. The fired employees had made negative remarks about recently hired nurses and generally acted rude and condescending to them. The bullying conduct became so bad that one of the newer nurses quit. The General Counsel for the NLRB contended that the hospital fired the employees for engaging in protected concerted activity because the fired employees had also made comments about understaffing at the hospital and expressed concern that senior nurses might lose their licenses because of the inexperienced newer nurses. The General Counsel also attacked the hospital’s Code of Conduct, arguing the rules could be reasonably construed as prohibiting employees from engaging in lawful, protected concerted activities. In relevant part, the Code of Conduct prohibited “[v]erbal comments or physical gestures directed at others that exceed the bounds of fair criticism” and “[b]ehavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork”.

The administrative law judge ultimately found that the employee terminations were lawful. However, the judge found that the rules forbidding comments that “exceed the bounds of fair criticism” and behavior that is “counter to promoting teamwork” were over broad and could reasonably be interpreted as prohibiting lawful discussions or complaints about terms and conditions of employment. The NLRB judge concluded that “[a]lthough the respondent has legitimate concerns regarding appropriate staff behavior, and has a legitimate interest in promulgating work rules to try to maintain a safe atmosphere in the workplace, those portions of the code are overbroad and ambiguous.”

This is not the end of the story. The case will now go to NLRB and can be appealed to federal court if the NLRB adopts the administrative law judge’s recommended order. Employers should stay tuned to see if the NLRB concurs with the administrative law judge that the reach of the NLRA extends to workplace civility codes. In the meantime, employers should review with counsel their workplace policies to ensure that their codes of conduct are narrowly drafted to prohibit specific conduct such as discriminatory remarks, harassment, threats or violence, and similar unlawful or inappropriate conduct without infringing on protected activity under the NLRA.

NLRB Posting – Dead for Now

By Glenn Rissman on January 9, 2014 Posted in Labor Law, Wage & Hour/Employee Classification

The National Labor Relations Board (NLRB) has decided not to seek U.S. Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule. As you may recall, the rule would have required most private sector employers to post a notice notifying employees of their rights under the National Labor Relations Act, such as the right to organize, join or assist a union, bargain collectively, discuss wages, benefits and other terms and conditions of employment, raise complaints, and strike or picket. Before the posting rule ever went into effect, two federal appellate courts said the posting rule was invalid. (See our post from May 10, 2013.) The NLRB has decided not to seek review of those court decisions, meaning that the Posting Rule is dead and no notice need be posted.

According to a statement on its website, “The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.” The NLRB’s website reinforces that under the National Labor Relations Act, most private sector employees have the right to:

• Organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions.
• Discuss terms and conditions of employment or union organizing with co-workers or a union.
• Engage in protected concerted activities with one or more co-workers to improve wages, benefits and other working conditions.
• Choose not to do any of these activities, including joining or remaining a member of a union.

Do not forget to attend our Seminar, “But We Do Not Have a Union – How the NLRB is Impacting Non-Union Workplaces,” on January 28 (Miami and via webinar) and January 29 (Boca Raton). Click here for details.

College’s No Gossiping Policy and Termination Thrown Out by NLRB Judge

By Stearns Weaver Miller on December 18, 2013 Posted in Employment Litigation, Labor Law, Legislation & Regulations

Last week, an administrative law judge for the National Labor Relations Board, ruled that a technical college ran afoul of the National Labor Relations Act for instituting a policy prohibiting employees from gossiping and for then firing an employee who violated the policy. Click here for a copy of the case.

Laurus Technical College in Atlanta (LTC) had a policy prohibiting employees from participating in or instigating “gossip about the company, an employee, or customer.” The policy defined gossiping as: “1) Talking about a person’s personal life when they are not present; 2) Talking about a person’s professional life without his/her supervisor present; 3) Negative, or untrue, or disparaging comments or criticisms of another person or persons; 4) Creating, sharing, or repeating information that can injure a person’s credibility or reputation; 5) Creating, sharing, or repeating a rumor about another person; and 6) Creating, sharing or repeating a rumor that is overheard or hearsay.”

LTC fired admissions employee Joslyn Henderson for soliciting her co-workers to go work for a competitor. After their manager was fired, Henderson and two other employees discussed the termination and their concern for their own job security. Henderson then called a colleague who worked at a competitor college to inquire if there were any open positions for the other two employees. When LTC found out about the call it fired Henderson.

The NRLB argued that Henderson was terminated for violating the no gossip rule. The administrative law judge agreed and found the policy to be “overly broad, ambiguous, and severely restricts employees from discussing or complaining about any terms and conditions of employment” and a violation of the NLRA. The judge then recommended overturning the dismissal of Henderson because there was evidence that she was terminated for violating the overly broad rule. Notwithstanding the gossip rule, the judge determined that even LTC’s proffered reason for Henderson’s termination violated the NLRA because the solicitations were made when the co-workers were discussing their own job security.

The case will now go to NLRB and will likely be appealed to federal court if the NLRB adopts the administrative law judge’s recommended order. Employers should stay tuned to see if the NLRB concurs with the administrative law judge that the reach of the NLRA extends to workplace gossiping.

Firing By Non-Profit for Inappropriate Facebook Conversation OK’d By NLRB Judge

By Stearns Weaver Miller on November 17, 2013 Posted in Employee Handbooks & Policies, Labor Law

A NLRB judge recently ruled that a non-profit’s discharge of two employees for having an inappropriate conversation on Facebook about the non-profit did not run afoul of the National Labor Relations Act. Click here for copy of the case. On July 30, 2012, the non-profit, a corporation that ran an after school teen center in San Francisco, sent the two employees, Ian Callaghan and Kenya Moore, rehire letters for the position of teen activity leader. On August 2, 2012, Moore contacted Callaghan on Facebook to see if he was going to take the job and the two began complaining about the after school teen center. Among other inappropriate comments, Callaghan said that he wanted to have “crazy events”, teach kids how to graffiti up the walls, “do some cool shit” and “fuck it up.” Moore said she was would “never be there” and when “they start loosin’ kids I ain’t help’n”. On August 3, 2012, another employee sent screenshots of the conversation to the director, who in turn sent an e-mail to human resources requesting that Callaghan and Moore not be rehired. Thereafter, the non-profit withdrew Callaghan’s and Moore’s rehire letters on August 13, 2012 citing concerns based on their Facebook conversation that the employees would not follow the directions of their manager and could endanger the youth.

General counsel for the National Labor Relations Board said that Moore and Callaghan were discharged for engaging in protected concerted activities arguing that the conversation was a continuation of complaints made during a May 2012 staff meeting where employees were told to write down the pros and cons of working for the non-profit. The non-profit argued that the Facebook conversation was detrimental to its ability to get grants and other funding because the employees said that they would have crazy events, not seek permission for the events and not be there to supervise the teens. The NLRB judge agreed with the non-profit and dismissed the case finding that although the employees had engaged in concerted activity, “the actions proposed in the Facebook conversation were not protected under the Act and that the employees were unfit for further service.”

The takeaway: Employers may be able to discharge an employee for engaging in concerted activity if the conduct is deliberately or recklessly egregious or of such character as to render the employee unfit for service. However, this is a pretty high standard and will not apply to all conversations that disparage a company and/or its activities.