Reminder: Employees Are Legally Entitled to Time Off From Work to Vote

Massachusetts law requires employers in any manufacturing, mechanical or mercantile establishments to give employees, upon request, up to two hours after the polls open to vote.  Technically, employers need only give employees leave during the first two hours of the day when the polls are open, i.e., between 7:00 and 9:00 a.m., but employers are wise to be more lenient, particularly with the availability of early voting.

Employers that are required to provide employees with time off to vote do not have to pay employees for the time, although many allow employees to use paid personal time.

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Revised Form I-9 to be Rolled Out in January 2017

The August/September 2016 edition of E-Verify Connection – the Department of Homeland Security’s newsletter for employers – states that on August 25, 2016, the Office of Management and Budget approved a revised Form I-9, Employment Eligibility Verification.  U.S. Citizenship and Immigration Services has until November 22, 2016, to publish a revised form.

According to E-Verify Connection, employers may continue using the current version of Form I-9 (Rev. 3/08/2013) until January 21, 2017, at which time they must begin using the latest revision.  After January 21, 2017, all previous versions of Form I-9 will be invalid.  Accordingly, employers will have 60 days to get familiar with the revised Form I-9 before they are required to use it.

If you have any questions about I-9 compliance, please call us.

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EEOC Announces Approval of Revised EEO-1

On September 29, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced the approval of a revised Employer Information Report (the “Revised EEO-1”) that must be submitted by private employers and federal contractors with 100 or more employees.

For many years, employers have been required to complete the EEO-1 to provide data about the number of employees by job category and by sex and race or ethnicity.  The Revised EEO-1 has two new elements:

  1. Summary Pay Data: employers are required to report the total number of full and part-time employees by demographic categories (sex and race or ethnicity) in each of the 12 pay bands listed for each of the 10 Revised EEO-1 job categories based on W-2 wages; and
  2. Aggregate Hours Worked Data: employers must tally and report the number of hours worked that year by all employees accounted for in each pay band.  For exempt employees, employers may either: (a) report 20 hours per week for each part-time employee and 40 hours per week for each full-time employee; or (b) report actual number of hours worked by exempt employees.

EEOC Chair Jenny R. Yang said that “[c]ollecting pay data is a significant step forward in addressing discriminatory pay practices.  This information will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of our federal antidiscrimination laws.”

Employers have criticized the Revised EEO-1 as imposing a costly burden on them, while not providing useful data.  Specifically, employers contend that the broad, aggregated pay data will not be of practical use to federal agencies because it does not account for the factors involved in determining employee compensation and W-2 wages do not capture an employee’s total compensation.

Notably, federal contractors with between 50 and 99 employees will not be required to report pay data, but will still be required to report demographic statistics by job category.  Private employers with fewer than 100 employees and federal contractors with fewer than 49 employees are not required to submit an EEO-1.

The first Revised EEO-1 report will be due on March 31, 2018, and based on W-2 wage information for the 2017 calendar year. A copy of the Revised EEO-1 can be found here.

We anticipate that the Revised EEO will be legally challenged by employer groups in the coming months.  We will keep you updated.

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Is Your Company’s Social Media Policy Compliant with the NLRA?

In light of social media’s ever-growing societal presence, including, but far from limited to, Facebook, Twitter, and Instagram, it is common for employers to enact social media policies establishing a code of conduct governing their employees’ online social media presence.  When drafting such policies, employers must be careful to avoid running afoul of the National Labor Relations Act (the “Act ”), which applies to most private sector employers, regardless of whether the employer has a unionized workforce.

In a recent decision by the National Labor Relations Board (the “Board”), two sections of the popular restaurant Chipotle’s former social media policy were invalidated.  See Chipotle Services LLC and Pennsylvania Workers Organizing Committee.  The two provisions in question read:

  1. “If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.”
  2. “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”

The Board invalidated provision (1) above of Chipotle’s social media policy because the policy failed to define what it considered to be “confidential” information.  Specifically, while Chipotle had a valid interest in protecting its private information, it had an obligation to define what information was “confidential” for purposes of the policy.  An outright ban on postings about “confidential” information could plausibly interfere with an employee’s rights under the Act, including engaging in concerted activities for mutual aid or protection.

Regarding provision (2) above, the Board held that Chipotle could not prohibit postings that are merely false, misleading, inaccurate and incomplete statements; instead, it could only prohibit postings made with malicious intent (i.e., the employee knew the statement to be false or made the statement with reckless disregard for its truth or falsity).  The Board also found that a ban on “disparaging” statements was invalid as being overbroad because it could plausibly encompass statements protected by the Act, such as statements critical of supervisors or managers.  Notably, the Board upheld the policy’s prohibitions on “harassing or discriminatory” statements, citing prior precedent for the same.

In light of the Board’s decision in this case, employers must take great care in drafting social media policies that do not unlawfully restrict their employees’ rights under the Act.  If you would like assistance with drafting or revising a social media policy, please contact a member of the Labor/Employment Group.

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NLRB Rules Student Teaching Assistants and Research Assistants May Unionize

In a landmark decision, the National Labor Relations Board (the “Board”) held that student teaching assistants and research assistants at Columbia University have an employment relationship with the University, making them “employees” under §2(3) of the National Labor Relations Act (the “Act”) who, therefore, have the right to organize and form a union.  See The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia – GWC, UAW.  In so holding, the Board overturned a 2004 Board decision, Brown University, which held that “graduate assistants [could not] be statutory employees because they are primarily students and have a primarily educational, not economic, relationship with their university.”  The Board’s decision in Columbia University is yet another example of its activist agenda of venturing into non-traditional labor issues, including employee handbooks, workplace safety, and arbitration clauses in employment agreements.

In overturning Brown University, the Board observed that the Act’s definition of “employee” appears to have been intended to encompass the ordinary dictionary definition of employee – specifically, any “person who works for another in return for financial or other compensation.”  The Board placed further weight on the fact that in the teaching assistant/private university relationship, there is the payment of tangible compensation.  The Board further opined that payment of such compensation from the university to the teaching assistant, in conjunction with the university’s control over the teaching assistant, is enough to establish an employment relationship under the Act.

Columbia University spokeswoman Caroline Adelman expressed the University’s disapproval with the Board’s decision, stating that “the academic relationship students have with faculty members and departments as part of their studies is not the same as between employer and employee.  First and foremost, students serving as research or teaching assistants come to Columbia to gain knowledge and expertise, and we believe there are legitimate concerns about the impact of involving a non-academic third-party in this scholarly training.”  Columbia University’s concerns over the impact of the decision leaves open the possibility of an appeal in federal court in order to overturn the Board’s holding.

The Board’s decision has the potential to have a significant impact on private higher education where issues previously left to the decisions of administrators and non-student teachers, such as the academic curriculum, grading obligations, and semester schedules, will now likely be subject to change through collective bargaining with student teachers and research assistants.  Accordingly, private higher education institutions should expect to see an increase in union organizing efforts.

The Board’s decision in its entirety can be found here.

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Employers Must Act Fast and Update Their Federal Posters

At the end of July 2016, the U.S. Department of Labor (“DOL”) announced that employers must post updated versions of the Federal Minimum Wage Poster and the Federal Employee Polygraph Protection Act Poster (“EPPA Poster”) by August 1, 2016.

Every employer of employees subject to the Fair Labor Standards Act’s minimum wage provisions must post the revised Federal Minimum Wage Poster in a conspicuous place in all of their establishments.  While there are several changes to the Federal Minimum Wage Poster, the most notable are the addition of:

  • a new section regarding the rights of nursing mothers;
  • a warning against incorrectly classifying workers as independent contractors; and
  • information regarding the DOL’s ability to recover liquidated damages in addition to back wages for minimum wage or overtime violations.

Meanwhile, the EPPA Poster was updated to provide appropriate DOL contact information and remove the provision that specifies the penalty amount of $10,000 for a violation.  The EPPA Poster now generally states that the Secretary of Labor may bring a court action to assess civil penalties.

As a result of the lack of advance notice from the DOL, many employers are currently out of compliance with federal posting requirements.  While print copies are not currently available from the DOL, employers are well-advised to immediately download and post a pdf of the revised posters from the DOL’s website (links below).  Employers who utilize online job applications must also update their links to the relevant posters.

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Once An Employee Has Verbally Resigned, Should You Require the Employee to Submit a Written Letter of Resignation?

It is not uncommon for human resources professionals to receive a verbal resignation from an employee or to be informed by a manager that an employee has stated that he or she is resigning their employment.  In many instances, these verbal resignations occur in the heat of the moment, such as in the midst of a performance-based counseling or while facing the prospect of discipline for misconduct.  The knee-jerk reaction of many managers and HR personnel is to inform the employee that they require the employee to submit his or her resignation in writing.  Although it is certainly legally permissible to request a resignation in writing, it is not always advisable to do so.

By requesting a resignation in writing, you will have conveyed to the employee that the company has not yet accepted the resignation.  As a result, the employee could elect to change his or her mind and, thereby, rescind the resignation.  This often occurs when the employee “cools down” and then speaks with a lawyer or friend who advises them that a resignation will likely prevent collecting unemployment compensation benefits or may affect other claims they might have against the employer.

Unfortunately, once the employee rescinds the verbal notice of resignation, a strong argument exists that the resignation that was offered can no longer be accepted by the employer.  To avoid this situation, employers are well advised to immediately verbally accept the employee’s resignation and then to very quickly follow-up the acceptance with either an email or letter to the employee stating as follows:

“I am writing on behalf of the company to confirm that the company has accepted your voluntary resignation from employment effective today.  Thank you for your service to the company.  We wish you every success in your future endeavors.”

Once the resignation has been accepted, the employee will have a difficult time attempting to rescind the resignation or claiming that the employer misunderstood his verbal statement that he had resigned.

Acceptance of the resignation should also be confirmed through standard end-of-employment processing, such as shutting off systems access to the employee, recovering keys and/or badges, and assisting the employee with exiting the workplace following gathering of personal belongings.  Because the employment termination stems from a resignation, the employer may process final wages and payment for any accrued and unused vacation through normal payroll processing.

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