EMPLOYMENT LAW UPDATE

Immigration alert, social media, salary threshold, minimum wage, trafficking and more

By Mike O’Brien bio

Immigration alert—more Social Security “no-match” letters to issue this fall: The Social Security Administration (SSA) has announced its plan to mail a second set of “no-match letters” to employers this fall. These notices request employers to reconcile wage reports and credit employees’ earnings to their Social Security records, stating there is a mismatch between certain employees’ information on Forms W-2 and the SSA’s database. They give employers 60 days to submit necessary corrections on the Form W-2C.

These letters may be intended to create concern regarding potentially unauthorized employees, and/or to cause such workers to “self-deport.” However, it is important for employers to recognize that the letter does not mean that a person is not authorized for employment. In fact, an employer cannot use the letter alone as a reason to suspend, fire, or discriminate against an employee, just because the Social Security number or name does not match SSA records. In fact, mismatches could result from a variety of reasons, including typographical errors, name changes, fraud and identity theft. In addition, the SSA is not an enforcement agency, either with respect to social security mismatches, or federal immigration law. However, an employer should take appropriate action after receiving a no-match letter, because it can create potential liability for continuing to employ an individual who is not authorized to work in the United States.

Immigration alert—more Social Security “no-match” letters to issue this fall: The Social Security Administration (SSA) has announced its plan to mail a second set of “no-match letters” to employers this fall. These notices request employers to reconcile wage reports and credit employees’ earnings to their Social Security records, stating there is a mismatch between certain employees’ information on Forms W-2 and the SSA’s database. They give employers 60 days to submit necessary corrections on the Form W-2C.

These letters may be intended to create concern regarding potentially unauthorized employees, and/or to cause such workers to “self-deport.” However, it is important for employers to recognize that the letter does not mean that a person is not authorized for employment. In fact, an employer cannot use the letter alone as a reason to suspend, fire, or discriminate against an employee, just because the Social Security number or name does not match SSA records. In fact, mismatches could result from a variety of reasons, including typographical errors, name changes, fraud and identity theft. In addition, the SSA is not an enforcement agency, either with respect to social security mismatches, or federal immigration law. However, an employer should take appropriate action after receiving a no-match letter, because it can create potential liability for continuing to employ an individual who is not authorized to work in the United States.

The SSA instructs employers who receive no-match letters to register online through the agency’s Business Services Online system at https://www.ssa.gov/bso/services.htm. Registering is the only way to view the names and Social Security numbers that need correction. Employers should then inform affected employees of the no-match notice, ask them to confirm the name and SSN reflected in their employment records, and ask them to contact the SSA to correct their records if needed. In contrast, if the employer’s records are incorrect, the employer should submit any needed corrections to the SSA.

Upon receiving a no-match letter, it may be advisable to review the employee’s I-9 and payroll records to ensure that they are consistent. However, employers should not to attempt to re-verify the employee’s employment eligibility by requesting the worker to complete a new Form I-9, to produce specific documents, or to provide verification of a resolution with the SSA.
If you have questions about no-match letters, or have other immigration needs, please feel free to contact Lewis Francis at lfrancis@joneswaldo.com.

NLRB publishes guidance memo on social media policies: The National Labor Relations Board (NLRB)—the federal agency that enforces the National Labor Relations Act (NLRA)— has been quite active regulating employment policies, even for non-union workplaces. In a guidance memo published on Aug. 15, 2019, the NLRB takes aim at the social media policies of CVS Health. CVS Health maintained a policy in its handbook that employees “who choose to mention or discuss their work, CVS Health, colleagues, or CVS Health products or services in personal social media interactions must identify themselves by their real name and, where relevant, title or role.” The NLRB ruled that this policy was unlawful and explained that “requiring employees to self-identify in order to participate in collective action would impose a significant burden on Section 7 rights.”

CVS Health also maintained a policy that “it is not permissible to disclose [employee information] through social media or other online communications.” The NLRB ruled this policy was also unlawful because the policy did not define the term “employee information.” The NLRB explained that this policy “contains no limiting context or language that makes clear that ‘employee information’ does not include employee contact information or terms and conditions of employment. . . . While the Employer has a legitimate business interest in keeping . . . employees’ personal and medical information confidential, it has no legitimate interest in preventing employees from sharing contact information or discussing wages, working conditions, or employment disputes.”

If you have not updated your social media policy recently, or if you have not yet adopted such a policy, the NLRB’s guidance memo will be a great starting point. You will find the NLRB’s memo here: https://www.nlrb.gov/news-publications/nlrb-memoranda/advice-memos/recently-released-advice-memos (CVS Health, Case No. 31-CA-202972, Release Date 8/15/2019).

DOL sends proposed FLSA salary threshold increases to OMB for final review: On Aug. 12, 2019, the U.S. Department of Labor sent its proposed salary threshold rule change to the White House Office of Management and Budget for a final review. This rule would raise the salary threshold for “white-collar” FLSA exemptions (executive, administrative, and professional) from $23,660 annually to $35, 308 annually. DOL’s proposed rule also includes an increase in the salary threshold for the highly compensated employee exemption, which has a relaxed duty test, from $100,000 to $147,414. Experts believe these new rules will make about 1 million workers eligible for overtime pay. Although this new rule could be finalized very soon, court battles are expected. You may read more about this development on SHRM’s website at: https://www.shrm.org/resourcesandtools/legal-andcompliance/employment-law/pages/federal-overtime-rule-to-white-house-for-review.aspx.

US House of Representatives passes bill to raise federal minimum wage to $15: On July 18, 2019, the U.S. House of Representatives passed the Raise the Wage Act with a vote of 231-199, largely along party lines. The bill would gradually raise the federal minimum wage from $7.25 per hour to $15 per hour by the year 2025. After 2025, the federal minimum wage rage rate would be indexed to the median hourly wage of all workers. According to the federal Bureau of Labor Statistics, about 1.7 million workers (about 2% of all workers) earned wages at the federal minimum wage rate in 2018. In early July 2019, a Congressional Budget Office study projected that the Raise the Wage Act would raise the wages of 27 million workers, but lead to 1.3 million fewer jobs. The bill stands little chance in the Republican-controlled Senate.

3/4 federal court rules that visa worker threatened with deportation can sue employer for trafficking:

The federal Trafficking Victims Protection Act (TVPA) makes it illegal to obtain the labor or services of a person by means of force or threats of force, by means of harm or threats of harm, or by means of “the abuse or threatened abuse of law or legal process.” Violations of this law are punishable by up to 20 years in prison and fines. Additionally, on July 25, 2019, the U.S. Second Circuit Court of Appeals ruled that an immigrant on a temporary worker H-2B visa could sue his employer for a violation of the TVPA where the worker alleged that his employer threatened to revoke its sponsorship, thereby subjecting him to deportation, if he complained about not receiving overtime pay. The facts as alleged in this case are egregious. Still, the case serves as a good reminder that employers who sponsor foreign visa workers should have written policies in place about their sponsorship and provide training to managers and their temporary workers about them.

Harassment by emoji?: Can a smiley face or heart emoji used in a workplace message come back to haunt you? Recent news articles highlight the increase in court cases involving communications in which meaning may hinge on an illustrated character—the humble and hardworking emoji. In recent years, the emoji has surged in popularity as a way to add tone or context to emails or text messages. Unsure whether your message seems harsh? Just add an emoji to avoid any miscommunication. What could go wrong? Apparently, more than most of us knew. According to a CNN article, 2019 has brought nearly 50 reported court cases in which emojis are evidence. And, not surprisingly, emojis are most prevalent in sexual harassment and criminal cases. It isn’t hard to imagine an employee claiming that a heart or winking emoji in a message from a colleague was flirtatious. CNN cited a case involving an FMLA claim in which the employee pointed to a manager’s use of multiple smiley faces as evidence the manager was happy to terminate her employment. Experts consulted by CNN point out that many emojis are subject to different interpretations. (Some of us have been made very painfully aware of this when our teenagers have kindly advised us that the emoji we’ve been using with relative frequency does not mean what we thought it did. Insert “embarrassed” emoji here!) Emojis, the experts conclude, are not a universal language. Adding to the problem, emojis do not render the same on every platform. They may look different on an iPhone than on an Android, or on Twitter. Moreover, symbols mean different things in different cultures. The takeaway here is that emojis matter. If you’re going to use them in a workplace communication, they should be scrutinized every bit as carefully as your words. As more and more courts are faced with the unenviable task of deciphering the meaning of these cute little symbols, HR professionals may expect to see more emojis popping up in workplace investigations as well.

States take action on emotional support animals: It seems that a week rarely passes without a news story about the steep increase in emotional support animals in the United States. Ducks, pigs, alligators, squirrels, snakes, peacocks, alpacas, hedgehogs—you name the animal, and there is someone who relies on it for emotional support and has sought to bring it along on a flight, to a restaurant, or to work. The New York Times recently reported that the National Service Animal Registry (a for-profit company that sells vests and certificates for emotional support animals) has nearly 200,000 animals in its registry, up from just 2,400 in 2011. Many critics argue that it is too easy to get documentation certifying the need for an emotional support animal, with numerous sources for obtaining such documents online. Against this background, many state legislatures have acted to address the issue. As we have noted in previous updates, Utah passed a law in the last legislative session making it a misdemeanor to lie about a pet being an emotional support animal. Oklahoma passed a bill clarifying the right of stores and restaurants the right to bar support animals, and Virginia took action against websites that provide emotional support animal documentation without an actual therapeutic relationship with the owner. A Florida legislator introduced a bill allowing landlords to require tenants to prove the need for a support animal with a letter from a Florida-licensed medical professional. As state governments continue to grapple with these issues, HR professionals should be aware that while emotional support animals are treated differently under the law than service animals, the use of a support animal may be a reasonable accommodation of a disability under the Americans with Disabilities Act (ADA). A request to bring a support animal to work typically should be analyzed on an individual, case-by-case basis, just as any request for accommodation would be treated under the ADA. Meanwhile, stay tuned to these updates for more legislative developments on this issue.

New state protected classes—obesity and hair: Two states recently added to the list of classes/characteristics protected from employment discrimination. California recently enacted a new law that bans discrimination against people based on their natural hairstyle. The law updates the definition of race bias to include discrimination against “traits historically associated with race, including, but not limited to, hair texture and protective hair styles.” The measure is known as the Crown Act- for “Create a Respectful and Open Workplace for Natural hair.” The California law prohibiting discrimination applies to private employers with five (5) or more employees. This law protects employees, independent contractors, and unpaid interns from harassment based on these protected classifications. The Washington state Supreme Court recently held that obesity is a protected class under the state’s anti-discrimination law (a decision which conflicts with some court decisions under federal law). The Washington state law prohibiting disability discrimination is more broadly-written than the federal law. The Washington prohibition against discrimination applies to all private employers with eight (8) or more employees.

Businesses urge ban on LGBTQ discrimination: A group of over 200 businesses (including Disney, GM and Marriott International) have filed a “friend of the court” brief in the United States Supreme Court urging the justices to find that any kind of LGBTQ discrimination is illegal in the workplace. The Court will hear arguments this Fall on whether current federal law prohibiting sex discrimination also includes bias based on sexual orientation or transgender discrimination. (Note, many state laws, including Utah, already prohibit such workplace discrimination.) The United States Department of Justice and the Equal Employment Opportunity Commission (EEOC) have taken opposite positions on this issue, as have a number of federal courts.


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