Tales from the (En)crypt

By Douglas Kilby on October 7, 2022 Posted in Employee Handbooks & Policies

Approaching Halloween, want to hear something Really Scary?

Late last year, the U.S. Court of Appeals, Third Circuit (Philadelphia) in Clemens v. ExecuPharm, Inc. (3^rd Circuit Dec. 14, 2021), made clear that employers can be held liable for failing to properly protect their employees’ personal data. Why is this so scary? Well, in this case, an employee, Jennifer Clemens, was required to provide her employer, ExecuPharm, with her address, social security number, bank and financial account numbers, insurance and tax information, passport and information relating to her husband and child. (This is the type of information kept by most HR departments). ExecuPharm agreed in writing to take appropriate measures to protect the information. Clemens then left ExecuPharm.

At some point after her departure, ExecuPharm was hacked through a phishing attack. ExecuPharm’s information (including its employees’ information) was then held for ransom. Either ExecuPharm refused to pay the ransom or “for nefarious reasons unknown” the hackers released all the information on the Dark Web. The release of 123,000 files included the sensitive, personal information on Clemens and her former co-workers. ExecuPharm notified its current and former employees of the breach and provided them some after-the-fact support. Clemens took action herself, which included her spending a substantial amount of her time and some expenditures to protect her information and to protect herself from being the victim of fraud or identity theft.

I-9 Update – Work Authorization of New Hires Applying to Renew Green Card

By Glenn Rissman on October 6, 2022 Posted in Hiring/Termination, Immigration, Legislation & Regulations

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The United States Citizenship and Immigration Services recently announced that lawful permanent residents who file a Form I-90 to obtain a new permanent resident card, aka green card, will have their green cards extended automatically for twenty-four months while USCIS processes the Form I-90 application. What does this mean?

During the I-9 process, a new hire may present an unexpired permanent resident card as proof of both work authorization and identity – a List A document. The USCIS normally issues permanent resident cards for ten years. A lawful permanent resident does not lose status when the permanent resident card expires but needs an unexpired card for travel or to use as a List A document when taking a new job. To renew an expiring green card, the lawful permanent resident files the Form I-90 with the USCIS. The USCIS will issue a Notice of Action confirming the filing of the Form I-90. Traditionally, that Notice of Action would include a statement that the filer’s permanent resident card is extended for twelve months. The individual could use the expired permanent resident card and the Notice of Action as proof of work authorization for that twelve month period. With the recent announcement, USCIS is now making the extension of the permanent resident card twenty-four months. When the USCIS issues a Notice of Action for a Form I-90 filed on or after September 26, the Notice of Action will say that the permanent resident card is extended for twenty-four months. For those permanent residents who have a pending Form I-90 filed before September 26, USCIS will issue a new Notice of Action with the twenty-four month extension language.
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The NLRB Joint Employer Pendulum Swings Back Again…

By Rene Ruiz on August 30, 2022 Posted in Labor Law, Legislation & Regulations

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If your company engages with contractors to perform services you may think are completely unrelated to your business at first glance…beware. It will soon be more likely that the National Labor Relations Board (“NLRB”) will deem the s employees to be yours. For years, political interests have created a pendulum where the government seems to encourage the use of independent contractors, or severely scrutinize it to reduce contractor status. The pendulum is indeed swinging back again.

After many years of following a single standard for determining joint employer status, the NLRB established a new and restrictive standard in 2015 with the Browning-Ferris case. In Browning-Ferris, the Board held that a company could be deemed the joint employer of its contractor’s employees even if it did not exercise direct or immediate control over those employees. For the Board in Browning-Ferris, the mere “possibility” that the company “could” exercise that control was enough to make it an “employer” for all purposes under the NLRA.

Avoiding Unfair Labor Practices (ULPs)

By Paul Crucet on August 24, 2022 Posted in Employee Handbooks & Policies, Hiring/Termination, Labor Law, Legislation & Regulations, Wage & Hour/Employee Classification

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In January 2021, I made several “way too early” pre-season predictions about then president-elect Joe Biden’s agenda regarding labor and employment. High on President Biden’s wish list was the Protect the Right to Organize Act (“PRO”), which would substantially strengthen labor law to the advantage of employees and unions. Congressional Democrats have been unable to push the PRO Act through Congress so far, but that does not appear to have inhibited the Biden administration’s attempts to bolster organized labor.

Several high-profile unionization efforts at Amazon, Apple, and Starbucks are indicative of a motivated labor movement. The National Labor Relations Board (“NLRB”) recently reported that union representation petitions filed with the NLRB in the first nine months of fiscal year 2022 (October 1 – June 30) were up 56% from the first nine months of fiscal year 2021.

Even employers who are not facing any attempts at organizing their workforce have felt the impact. The Biden administration’s union-friendly agenda appears to be emboldening the NLRB to target all employers, even if their workforce is not unionized. The NLRB’s new general counsel has issued several edicts directing Board agents to seek more severe remedies for violations of labor law, and expressed that Board staff should pursue cases more aggressively in various areas, including employer handbook rules, confidentiality provisions, and employees engaging in protected concerted activities.

DON’T IGNORE IRS ESRP NOTICES!

By Sharon Quinn Dixon on August 18, 2022 Posted in Employee Benefits & Compensation

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Employers continue to receive nastygrams from the IRS threatening “Employer Shared Responsibility Payments” (ESRP). These penalties are assessed against an employer that doesn’t offer compliant, affordable group health coverage to a sufficient percentage of its employees when an employee who isn’t offered compliant, affordable coverage obtains tax-subsidized health coverage via the federal “marketplace.”

In our experience, and with just a few exceptions, the penalty notices are generated not because of an actual violation of the rules, but because of incomplete or incorrect reporting on IRS Forms 1094-C or 1095-C, which are the reporting forms the large employers use to report health coverage offered to employees.

Often an employer delegates responsibility for preparing the reporting forms to its payroll provider or a consulting firm. Employers should review these forms before they are filed. For example, does the form check the correct box indicating whether coverage was offered to employees? We have seen numerous ESRP penalties assessed based on forms stating that coverage was not offered when in fact the employer had offered coverage. Employers should look for other obvious errors such as inconsistent information, checkboxes not marked, blanks not filled in, etc.

REGISTER NOW! Annual Labor & Employment Law Seminars

By Robert Turk on August 17, 2022 Posted in Disability & Leave, Discrimination & Harassment, Employee & Management Counseling, Employee Benefits & Compensation, Employee Handbooks & Policies, Employment Contracts & Corporate Issues, Employment Litigation, Hiring/Termination, Immigration, Labor Law, Legislation & Regulations, Wage & Hour/Employee Classification

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After a two-year hiatus, we are thrilled to be back in person! This year’s theme is “When Really Bad Things Happen to Really Good Employers…”

Our annual seminars draw hundreds of human resource professionals, in-house counsel and senior executives from Florida’s top businesses. And for good reason! No one does events quite like we do – our seminars are not just lectures, they are learning experiences. This year will not disappoint. In addition to the Miami and Tampa seminars, we are excited to host our first annual Tallahassee seminar!

Find out more and register now using the link for your city below. Pending HRCI Credits, SHRM Credits and The Florida Bar CLE Credits. We look forward to seeing you in the fall!

Miami | October 14 | 8am-4pm | Jungle Island | REGISTER FOR MIAMI

Tampa | October 21 | 8am-3pm | Centre Club | REGISTER FOR TAMPA

Tallahassee | November 4 | 8am-1:30pm | Turnbull Center | REGISTER FOR TALLAHASSEE

Working on July 4th… Downtime or Overtime?

By Stearns Weaver Miller on July 1, 2022 Posted in Employee Benefits & Compensation, Employee Handbooks & Policies, Legislation & Regulations, Wage & Hour/Employee Classification

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Reposting due to popular demand.

Nearly two and half years into the pandemic, people are itching to connect in group settings. The 4th of July is a major holiday where folks get to spend time with loved ones, travel and embrace their time off work.

This holiday is always eagerly anticipated, so much so that many employers have started providing employees with a four-day weekend when the holiday falls on a Tuesday or Thursday, or a three-day weekend, when the holiday falls on a weekend, Monday or Friday. Other employers provide employees with a half day off on July 3rd. It is natural, then, that when the holiday falls mid-week, employers find themselves fielding PTO requests for the days surrounding the holiday. The truth is, however, that the vast majority of employers only provide employees with the day off on July 4th itself, no matter what day of the week it falls on.

This leads to an interesting question. Does an employer have to pay an employee overtime for requiring them to work on July 4th?

It’s Hurricane Season Once Again!

By Glenn Rissman on June 1, 2022 Posted in Employment Contracts & Corporate Issues, Legislation & Regulations, Wage & Hour/Employee Classification

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Is it June already? I wish that only meant that it is mango season in Florida, but unfortunately, it means the start of another hurricane season. Last year, we were lucky enough to have Hurricane Specialist Bryan Norcross’s forecast for the 2021. If you want to see whether Bryan got it right last year or rather watch a video of me presenting hurricane preparedness tips, you can watch my segment in “Breaking Through The Noise: Labor & Employment Issues Post-Pandemic” (timestamp: 1:44:47-1:53:00) available ON DEMAND. Feel free to forward the link to your friends and colleagues.

For those who prefer to read, below are tips on how to prepare your business for the new hurricane season.

U.S. Supreme Court Cracks Down on Late Arbitration Demands

By Stearns Weaver Miller on May 26, 2022 Posted in Employment Contracts & Corporate Issues, Employment Litigation, Wage & Hour/Employee Classification

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Does your company have employees that sign agreements to arbitrate any disputes arising from their employment contracts? Then a recent U.S. Supreme Court case serves as a cautionary tale for companies looking to enforce these arbitration agreements. The lesson is to demand arbitration as early as possible or else you risk waiving the right if you make a motion to compel arbitration later down the road.

On May 23, 2022, the United States Supreme Court decided Morgan v. Sundance, Inc., which concerned the correct test to apply when deciding whether a party has waived the right to arbitrate. In this case, Plaintiff was an hourly employee at a Taco Bell owned by Sundance. He later filed a nationwide collective action suit against Sundance, alleging wage and hour violations. In Plaintiff’s employment contract, he signed an agreement to arbitrate any employment disputes. However, the Defendant litigated the case in federal court for several months making motions to dismiss, answering the complaint, and attending mediation, before ultimately making a motion to compel arbitration under the Federal Arbitration Act (“FAA”). The issue for the Court was whether the Defendant had waived their right to arbitrate the matter.

USCIS Expands Automatic Extension of Select EADs from 180 to 540 Days

By Glenn Rissman on May 4, 2022 Posted in Immigration, Legislation & Regulations

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On May 4, U.S. Citizenship and Immigration Services will increase the automatic extension of work authorization from 180 to 540 days for certain applicants for an employment authorization document (EAD). The existing requirements of the rule will remain the same. To qualify for the now 540 day automatic extension of work authorization, the individual:

Must hold an EAD issued under one of the qualifying categories – A03, A05, A07, A08, A10, A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12 or C19.
Must have filed a Form I-765 application for work authorization to extend the EAD before the EAD expired.
Must have filed the Form I-765 under the same qualifying category as reflected on the face of the expiring EAD. (In the case of employees with Temporary Protected Status (TPS), any combination of C19/A12 on the EAD and Form I-765 fee receipt applies.

*In the case of H-4, L-2, and E dependent status, they must also present an unexpired Form I-94 reflecting their H-4, L-2, or E status, as applicable.
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