ICE May Visit Your Company or University Campus – a Quick Checklist and Guidance

Lately, ICE has been more active in making arrests of undocumented individuals. Statistically however, the number of arrests are very small and the “bark” is much bigger than the “bite.” Nonetheless, it is helpful for employers and other stakeholders to know what the required protocols and duties are if ICE shows up, employee rights, and bystander rights. Below is a quick checklist to help you along with important guidance.

Major Points

  • Immigration is a civil matter, not criminal. The majority of ICE warrants are administrative civil warrants.
  • ICE priorities are arresting those with criminal convictions and those who have been previously ordered removed (absconders). ICE may pursue these activities in public areas.
  • Anybody arrested by ICE has the right to counsel.
  • ICE agents are federal employees that are working as directed. Nonetheless, it is the policy of most employers that ICE activities focusing on the personal immigration issues of an individual shall not take place on company property.
  • If an ICE agent does attempt to arrest someone on company property, do not interfere as that will complicate matters. However, please contact your manager and they will coordinate with HR and Legal. Continue Reading

The NLRB Holds That Employers May Implement Class Waivers in Response to Class Claims and Discipline Employees Who Refuse to Sign Them

Employers wishing to implement class action waivers in response to class claims and discipline employees who refuse to sign them just got some very good news from the National Labor Relations Board (NLRB or Board) in Cordua Restaurants, Inc., 368 NLRB No. 43.

By way of background, in Epic Systems Corp v. Lewis, 138 S. Ct. 1612 (2018) the SCOTUS held that agreements containing class and collective action waivers and requiring that employment disputes be resolved by individualized arbitration do NOT violate the National Labor Relations Act (NLRA or the Act) and that an employer is free to condition employment on an employee’s entry into such an agreement.  Thus, according to Court, such arbitration agreements are to be enforced as written pursuant to the Federal Arbitration Act. Continue Reading

Unintended Consequences: Dynamex and California Health Care Employers

This article originally appeared in Healthcare News on August 6, 2019.

The California Supreme Court’s 2018 landmark decision, Dynamex Operations West, Inc. v. Superior Court (Dynamex), redefines the employment relationship between entities and workers in California and creates one of the most stringent standards in the United States for classifying workers as independent contractors.

Applying the changes introduced by Dynamex can present significant complications in many industries. This is especially true for the health care industry due to California’s prohibition of corporate practice of medicine (CPOM) and its associated rules. For example, the state requires hospitals to have physicians available during all hours of hospital operation, while, at the same time, generally prohibiting hospitals from hiring physicians directly.

Due to these complexities, many California health care entities may benefit from examining the potentially sweeping impacts of this new interpretation of the law and determining near- and long-term methods for making necessary changes to their hiring and retention policies. Following is an in-depth overview of the potential implications for health care employers and how those in the health care industry will likely need to respond. Continue Reading

Breaking with Tradition, The Current NLRB is on a Rulemaking Tear: Election Procedures, Recognition Bar, and 9(a) Collective Bargaining Relationships

In its 84-year history, the National Labor Relations Board (NLRB, Board or Agency) has promulgated a very small number of rules pursuant to the Administrative Procedures Act, relying, instead, on individualized adjudications to establish the Board’s legislative policies. However, breaking with that long tradition, the current Board now appears to be on the verge of a formal rulemaking jag for on May 22, the Board released its “Unified Agenda” of anticipated regulatory actions which, in addition to proceeding with rulemaking regarding joint employer standards, announced the Board’s intention to consider formal rulemaking in a number of critical areas. Consistent with that wide-ranging Agenda, on August 12, the Board published a Notice of Proposed Rulemaking (NPRM) over the objection of Democratic appointee, Lauren McFerran, that would amend the Agency’s rules and regulations governing the filing and processing of election petitions in three very important ways. This NPRM, therefore, deserves attention. Continue Reading

Salary History Off-Limits Under New Illinois Equal Pay Law

On July 31, 2019, Governor J.B. Pritzker signed a law prohibiting Illinois employers from asking job applicants or their previous employers about salary history.

The law amends the Equal Pay Act of 2003, which made it illegal to discriminatorily pay employees on the basis of sex or race. The impetus behind the new salary history amendment is an effort to close the gender wage gap. According to a news release from the governor’s office, women in Illinois earn 79% of what men earn. Continue Reading

The NLRB Confirms that Intermittent Strikes in Furtherance of the Same Goal are Unprotected

The National Labor Relations Act’s (NLRA or Act) Section 7 grants to all employees — regardless of whether they are unionized or not — the right to engage in protected concerted activity (PCA).  Accordingly, an employer may not punish or take any adverse action against a worker because they engage in PCA. Such adverse action is an unfair labor practice in violation of Section 8(a)(1) of the NLRA.   Continue Reading

Predictable Scheduling Makes Its Way To Chicago

Chicago Mayor Lori Lightfoot is expected to sign into law the City Council’s recently passed Chicago Fair Workweek Ordinance (the “Ordinance”).  The Ordinance, which includes predictable scheduling provisions, will dramatically affect workweek scheduling for many Chicago employers beginning on July 1, 2020.

We previously wrote about Emeryville, California’s Fair Workweek Ordinance.  Emeryville became the third municipality to enact predictive scheduling legislation (Seattle and San Francisco being the others).  In an effort to enact “fair and equitable employment scheduling practices”, the Chicago City Council now passed its own Ordinance, which requires certain Covered employers (as defined below) to provide Covered employees (as defined below) with at least two weeks’ advance notice of their work schedules and to compensate employees in the event of certain schedule changes. Continue Reading

Title VII Reversal: Fifth Circuit Holds No Transgender Protections Under Civil Rights Statute

Earlier this year, a three-judge panel of the Fifth Circuit Court of Appeals unanimously rejected the notion that Title VII of the Civil Rights Act protects individuals from discrimination on the basis of their sexual orientation or transgender status. More than a standard-issue opinion, however, the Fifth Circuit’s holding was a laser-focused rebuke of a widely-publicized district court opinion which held Title VII’s prohibition on sex-discrimination applies to transgender individuals. Continue Reading

The NLRB Just Made It A Little Easier For Employees To Get Rid Of Their Union

Unionized workers wishing to rid themselves of continued union representation (and their employers) just got some very good news from the National Labor Relations Board (NLRB or Board) with the issuance of Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019).  The issue addressed there was how the NLRB will determine the wishes of employees concerning continued union representation where an employer has evidence that at least fifty percent of bargaining unit employees no longer desire to be represented by an incumbent union and the union possesses evidence that it has reacquired majority status. This is an important case because it revamps existing rules relating to an employer’s “anticipatory” withdrawal of recognition of a union and requires incumbent unions that have lost their majority to reestablish their majority status by way of a secret ballot NLRB election.

Here is how the system worked before Johnson Controls and how this process will work going forward. Continue Reading

Employers Can Now Stand Firmly On Not Paying Employees For The Cost Of Slip-Resistant Shoes

On June 4, 2019, the Court of Appeal, Third Appellate District issued an unpublished opinion in Krista Townley v. BJ’s Restaurants, Inc. holding that BJ’s Restaurants was not required to reimburse its employees for the cost of black, slip-resistant, closed-toe shoes that BJ’s required its restaurant employees to wear. Due to the lack of California case law addressing the issue, BJ’s requested the opinion be published in the Official Reports. On July 5, 2019, the Court of Appeal granted BJ’s request and ordered the opinion certified for publication. This is the first published opinion in California to adopt the Division of Labor Standards Enforcement’s (“DLSE”) interpretation of a “uniform” and to hold that an employer is not required to reimburse employees for the cost of “non-uniform” work clothing. Matthew Sonne and Jason Guyser of Sheppard Mullin represented BJ’s Restaurants in this matter. Continue Reading

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