When an employee experiences the death of a loved one, the grief can continue well beyond resuming work. The holidays can be especially hard, no matter how much time has…
What are some tips for keeping front-line workers engaged during the holidays? Can an outside contractor manage full-time employees? https://www.shrm.org/resourcesandtools/hr-topics/organizational-and-employee-development/pages/ask-hr-morale-hectic-holiday-season.aspx
Many employers had trouble keeping up with the dizzying pace of new directives from the National Labor Relations Board (NLRB) in 2023. And these changes may have prompted you to review and update your employee relations policies and practices with an eye for compliance in the year ahead. What might you expect from the NLRB in 2024? Board members and General Counsel Jennifer Abruzzo recently discussed their priorities at the American Bar Association’s 17th Annual Labor and Employment Law Conference in Seattle. Here are five top priorities they highlighted, as well as our practical tips for your compliance plan.
1. Spotlight on Work Rules
Board members emphasized their continued focus on work rules – including employee handbooks and workplace conduct policies – and ensuring they are narrowly tailored.
As you may know, in August the Board modified the legal standards used to evaluate such rules. Under the decision in Stericycle, Inc., the Board analyzes whether an employee “would reasonably construe” the applicable rule or policy as chilling protected conduct under Section 7 of the National Labor Relations Act. To avoid a violation, employers must now show that workplace conduct rules are narrowly tailored to special circumstances justifying any infringement on employee rights.
Board Member David Prouty noted that the NLRB will look at such policies through the lens of the employee who wants to keep their job and also wants to exercise their Section 7 rights.
However, the Board’s sole Republican member, Marvin Kaplan, said it’s hard for employers to understand how a work rule meets the “narrowly tailored” standard.
The new standard subjectively examines whether a workplace rule or policy has a reasonable tendency to interfere with employees’ exercise of Section 7 rights. In other words, if an employee could reasonably interpret the rule to be coercive (even if a noncoercive interpretation is also reasonable), then the burden shifts to the employer to justify it.
|Practical Tips: While some employers already review their handbooks on a yearly basis, it may be important to do so more frequently in light of the Stericycle ruling – particularly since so called “workplace civility rules” requiring employees to positively engage with co-workers are likely to be deemed unlawful. You should consider working with your attorney to audit your employment policies for compliance with the new standard and ensure you are up to speed on its real-world impact on existing workplace conduct rules.|
2. Limitations on Non-Competes
While GC Abruzzo said she doesn’t necessarily think non-compete agreements should be unenforceable in every situation, she feels very strongly that they should be limited. “My position is pretty clear,” she told attendees at the ABA conference, noting that she wants to see bargaining power equalized between employers and employees. She said the NLRB is seeing non-competes with low- and middle-wage earners in retail and the fast-food industry who are prevented from improving working conditions because they can’t threaten to leave and get a job with a competitor.
In a memo issued on May 30, GC Abruzzo urged NLRB regional directors to find that many employer-mandated non-compete agreements infringe on employees’ rights under Section 7. While General Counsel memos don’t represent the official legal position of the entire agency, they do represent the policy and guidance for all Regional Offices investigating and prosecuting charges against employers.
|Practical Tips: Even if your organization hasn’t had prior dealings with the NLRB, your choice to continue using non-compete agreements could very well come under scrutiny — and you should be prepared for the possibility that employees will file unfair labor practice charges against you. Consider taking inventory of all existing non-compete agreements in your organization, assessing which employees are being asked to sign such agreements, and working with legal counsel to understand the associated risks and to potentially update your policies and practices.|
3. Planning for AI Advancements
“AI is something that we’re all going to have to grapple with,” GC Abruzzo noted at the conference. This issue has been top of mind for a while and will continue to be a focus for many federal agencies. Back in October 2022, GC Abruzzo issued a memo saying that agency investigators should target workplace surveillance and “algorithmic management” technologies that have a “tendency” to interfere with employees’ protected workplace activity. “Recent technological advances have dramatically expanded employers’ ability to monitor and manage employees within the workplace and beyond,” she said.
The memo asserts that increased reliance on sophisticated technological tools to monitor employee activities on the heels of the pandemic have the practical effect of chilling union and other protected concerted activities, and that AI-driven software could use data obtained from such surveillance to make automated decisions that discourage those activities.
|Practical Tips: You may want to review your existing surveillance and monitoring initiatives to ensure they are sufficiently tailored to conform to your underlying business objectives. You should take steps to articulate and document the legitimate reasons for such initiatives prior to implementing them or as you continue to administer them. Where feasible, you should consider confining the scope of such provisions to employee working time and explore other prospects for narrowly tailoring application around their unique business objectives. You should also train supervisors to administer such practices in compliance with existing NLRB doctrine. Lastly, unionized and non-union employers alike should tread cautiously when implementing new monitoring technologies and programs in close consultation with legal counsel.|
4. Responding to Union Recognition Demands
The Board’s August 25 decision in Cemex Construction Materials Pacific, LLC created a new framework for determining when employers are required to bargain with unions without a representation election. The decision was yet another step taken by the Board to reverse the decline in union membership and make it easier for unions to add new members. In a follow-up move, GC Abruzzo issued a guidance memo on November 2 that provides some further structure to this new framework and imposes heavy burdens on employers faced with bargaining orders in response to unfair labor practice charges.
|Practical Tips: It is more important than ever for employers to be proactive. Click here for an eight-step action plan to strengthen your employee relations program.|
5. Sharing Information
Employers should prepare for increased enforcement efforts now that the NLRB has entered partnerships with several other federal agencies. For example, the NLRB and the Occupational Safety and Health Administration announced on October 31 that they entered an agreement to enhance information sharing and cross-agency consultations, training, outreach, and education. The agencies aim to promote safe and healthy workplaces and protect workers who speak out about unsafe working conditions. This agreement aligns with other recent interagency collaborations we’ve seen from the NLRB — including two earlier partnerships with the Department of Labor and the Federal Trade Commission. This means employers may find themselves subject to even more scrutiny from multiple agencies.
GC Abruzzo said she doesn’t have plans to partner with any additional agencies at this time, but she’s open to it.
|Practical Tips: Ensuring you have solid pay practices, worker classification systems, and safety and health programs in place may ultimately save your workplace from the concerted enforcement efforts the NLRB and partners such as OSHA, the DOL, and the FTC.|
We will continue to monitor NLRB and other agency decisions that impact your day-to-day operations and provide updates as necessary. Be sure to sign up for Fisher Phillips’ Insight System to ensure you receive updates directly to your inbox. If you have questions, contact your Fisher Phillips attorney, the authors of this Insight, or any attorney in our Labor Relations Practice Group.
Personal and professional connections were vital to Ann Chow’s success, the former head of AT&T Business told attendees of the 24th annual Women in Leadership Institute. She said these connections made it possible for her, a second-generation immigrant, to ultimately become the first woman of color to be a CEO in AT&T’s 140-year history. https://www.shrm.org/resourcesandtools/hr-topics/organizational-and-employee-development/pages/women-and-the-awesome-power-of-connection.aspx
Employees see pet-friendly policies seen as evidence that organizations prioritize their well-being, researchers say. Welcoming pets can help attract and retain the…
Employers often have questions about whether they should use E-Verify to help determine whether their new hires are authorized to work in the United States. The program – which matches I-9 data with the information in various government databases – is voluntary for most employers but mandatory for federal contractors and some employers in certain states. Ultimately, its goal is to help employers stay compliant with federal employment and immigration regulations. But is E-Verify right for you? Consider these five pros and five cons when deciding whether to incorporate it into your hiring process. [To learn more about I-9 compliance, join our advanced training webinar on December 6.]
Top 5 Reasons Why Employers Should Consider Using E-Verify
- Electronic Verification: When hiring a new employee, you must complete a Form I-9 and physically examine the employee’s identity and work authorization documents. Notably, however, a new benefit just became available for employers that are enrolled in E-Verify allowing them to conduct document verification electronically rather than in person.
- Speed: Employers that use E-Verify receive an initial determination almost immediately regarding a new employee’s authorization to work.
- Good Faith Defense: When an employer confirms the identity and employment eligibility of newly hired employee using E-Verify procedures, you may rely on the system’s confirmation of that employee’s work authorized status, creating a presumption of good faith in the hiring process. This serves as an extra layer of protection and confidence when it comes to compliance.
- Easy integration: E-Verify can be integrated into an employer’s existing onboarding and HR processes and can also be accessed online.
- Government Benefits: Depending on the state, employers may receive state contracts, grants, or incentives for using E-Verify. Additionally, enrollment in E-Verify is a requirement for being awarded certain federal government contracts.
Honorable Mention – Extra Options for Hiring Foreign Nationals: Employers that are enrolled in E-Verify can hire foreign students on F-1 visas for an additional period of two years for Science, Technology, Engineering, and Mathematics (STEM) positions.
Top 5 Reasons Why Employers May Not Want to Use E-Verify
- Drain on Resources: Employers will need to learn how to use E-Verify, stay up to date with ever-changing regulations, and ensure their IT systems can manage the process and keep up with changes.
- False Positives and Negatives: E-Verify is not foolproof, and errors can occur. The system may sometimes flag individuals who are authorized to work (false positives) or fail to identify unauthorized workers (false negatives).
- Privacy Concerns: E-Verify involves the collection and storage of sensitive personal information, such as Social Security numbers. This has raised concerns about privacy and the potential for identity theft or misuse of this information.
- Extra Management: Employers that use E-Verify must consistently use the system for all employees and subject themselves to ICE audits to verify both I-9 and E-Verify compliance. Using E-Verify does not decrease the chance of an I-9 audit.
- Government Shutdown: Employers should consider recent and future threats of government shutdowns, as E-Verify is not available while the federal government is not operating. Although E-Verify will be available after a shutdown ends, there is a period where employers may not submit data.
Honorable Mention – Reliance on Technology: As a web-based service, E-Verify requires access to reliable internet, certain software, and a printer.
Fisher Phillips will continue to monitor E-Verify and I-9 Form developments and will provide additional guidance as it becomes available. Make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information and invitations to our webinars. If you have further questions, contact your Fisher Phillips attorney, the authors of this Insight, or any attorney on our Immigration Practice Group.
Don’t forget to join our advanced training webinar on December 6 to learn more about I-9 compliance, including how to conduct an internal audit.
Research suggests that neither job candidates nor hiring managers are fully honest during the hiring process. That dishonesty can have consequences.
The shift toward remote and hybrid work in Canada has posed new challenges among employers who need to comply with requirements for comp time and overtime, which vary by province. https://www.shrm.org/resourcesandtools/hr-topics/global-hr/pages/canada-comp-time-overtime.aspx
Welcome to this edition of the FP Snapshot Manufacturing Industry, where we take a quick snapshot look at recent significant workplace law developments with an emphasis on how they impact employers in the manufacturing industry. This edition is devoted to refreshing manufacturing employers on three critical points as you handle your annual EEO-1 report filing, which you will need to do in the coming weeks.
Snapshot Look at EEO-1 Reports
Private employers with at least 100 employees – or federal contractors with at least 50 employees – are required to annually file EEO-1 reports with the Equal Employment Opportunity Commission. An EEO-1 report provides company demographic data by displaying the number of individuals employed by job category and sex and race or ethnicity. Typically, EEO-1 reports must be submitted and certified no later than March 31, but the data timeframes and submission deadlines have been subject to change since 2018. As a result, the 2022 EEO-1 Component 1 data collection window opened on October 31 and runs through December 5.
For a deeper dive into the situation, you can read our full Insight here.
What 3 Things Do Manufacturers Need to Know?
There are three key points that manufacturers should consider when preparing your EEO-1 reports.
- There may be severe consequences for federal contractor manufacturers who fail to file their EEO-1 reports. Manufacturers with federal contracts or subcontracts totaling more than $10,000 are subject to Executive Order 11246. If you have 50 or more employees, you are also required to file EEO-1 reports if you have either a direct contract with a federal executive branch agency or if you are a first-tier subcontractor with a qualifying contract. As such, you could risk the federal government terminating your contract and prohibiting you from being granted future federal contracts if you fail to file your EEO-1 reports and refuse to correct the failure to file.
- Manufacturers do not need to count “leased employees” toward their 50 or 100 employee threshold. This is an important point for you to know since so many employers in the manufacturing industry deploy leased labor. As laid out in the 2022 EEO-1 reporting instruction booklet, a leased employee means a permanent employee provided by an employment agency for a fee to an outside company for which the employment agency handles all personnel tasks including payroll, staffing, benefit payments and compliance reporting. Leased employees will be accounted for on the employment agency’s EEO-1 report. Note also that temporary workers are also not counted toward a manufacturer’s 50 or 100 employee threshold.
- The number of EEO-1 reports filed will depend on the number of establishments in your business. If you only operate one establishment, you are required to submit and certify one EEO-1 Single-Establishment Employer Report. But if you have more than one establishment, you must file a Consolidated Report, a Headquarters Report, and Establishment-Level Reports. The Establishment-Level Reports replace the prior Type 4 and Type 8 reports. Establishments at different physical locations must be reported as separate establishments, even if conducting the same business or performing the same services or industrial operations.
We will continue monitoring workplace law developments, so make sure you are subscribed to Fisher Phillips’ Insight system to have the most up-to-date information sent directly to your inbox. If you have questions, contact your Fisher Phillips attorney, the authors of this Insight, or any attorney on our Manufacturing Industry Team.
Since the United States Supreme Court issued its ruling in Students for Fair Admissions v. Harvard University and the University of North Carolina on June 29, 2023, striking down race-conscious admission processes in higher education, it has sent shock waves throughout the corporate community as business leaders consider the decision’s potential impact on their own diversity, equity & inclusion (DEI) initiatives.
Littler Principal Cindy-Ann Thomas and her guest, Littler Shareholder Kim Carter, explore:
Interesting linksHere are some interesting links for you! Enjoy your stay :)
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