DACA and DAPA and Form I-9, Oh My! Does Prior Document Fraud Require Termination?


President Obama’s recent decision to take executive action on immigration may cause confusion for some employers with regard to Form I-9 compliance.

The action includes two initiatives that potentially impact Form I-9 recordkeeping — enhancements to the Deferred Action for Childhood Arrivals (DACA) program and the creation of a similar program for parents of U.S. citizens and lawful permanent residents who have been in the country since January 1, 2010, to be known as the Deferred Action for Parental Accountability (DAPA). Continue reading this entry

When It Comes to “Volunteer” Workers, No Good Deed Goes Unpunished


It is that fun time for New Year’s resolutions. Right up there with promises to go to the gym and to try to get along with one’s in-laws, many will make plans to do more volunteer work in 2015. From an employer’s point of view, a worker who willingly agrees to give his or her time and effort to the company without expectation of pay may seem like the perfect belated holiday gift. However, as we have previously discussed, in the context of student interns and independent contractors, if an individual is a bona fide employee, he or she cannot waive the right to receive minimum wage under federal and state law. Accordingly, employers must carefully examine all the relevant circumstances (which will differ based on whether the employer is a for-profit or nonprofit entity) in considering an employee’s offer to volunteer. Continue reading this entry

NLRB Deems Employer Unlawfully Distributes a Workplace Violence Memo After Union Organizing Activity


Your intentions may be pure, but your actions during or after union organizing activity could lead to your company running afoul of the National Labor Relations Act (the Act) according to the National Labor Relations Board (NLRB). The NLRB has recently emphasized this message in yet another 2-1 decision ruling that a nursing home employer’s attempt to restore a harmonious workplace environment in posting a memorandum and workplace violence policy, following a union election and asking employees to treat each other with respect and dignity, was an unfair labor practice. Continue reading this entry

NLRB Again Throws Out Decades of Precedent and Recasts its Standards Regarding Deferral to the Arbitration Process


In recent weeks, we have commented on two recent moves by the National Labor Relations Board that have reversed long standing precedent and dramatically changed the labor law landscape: 1) a decision by the Board to open employer email systems to union organizing in some circumstances, and 2) a rewrite of its election procedures to allow “quickie” elections, effective April 14, 2015.

Now, the Board has issued yet another decision that changes long standing precedent. For over 30 years, the Board has deferred action on a labor practice charge where there was a pending grievance raising generally the same factual issues. The theory was that the employer and the union had agreed to arbitration concerning those facts under their collective bargaining agreement, and the Board favored letting the parties work the issues out through arbitration. The Board would only then pursue the related unfair labor practice charge if it thought the arbitration decision or arbitration settlement was “repugnant” to the National Labor Relations Act. The practical effect of this deferral approach was that an employer very rarely had to fight the battle on two separate fronts at the same time, and if the matter got resolved in arbitration, that was the end of it. Continue reading this entry

OSHA Wants to Change Recordkeeping Rule to Pursue Violations for Up to Five Years After They Occur


Under current OSHA rules, employers must keep and retain certain records of workplace injuries, and if an employer neglects to keep the required records, OSHA can issue citations for the employer’s lack of compliance. However, there is currently a six-month time limit on how far into the past OSHA may reach to cite employers for not following the record keeping requirements. OSHA is now taking steps to change the time period to the full five years that individual records must be retained. Continue reading this entry