Workplace Wise - Iowa Employment Law Attorneys

Wednesday, September 12, 2018

DOL Releases Updated FMLA Forms

By: Megan Erickson Moritz


Last week, the Wage and Hour Division of the United States Department of Labor finally released its updated Family and Medical Leave Act forms. However, I use the term "updated" here loosely, as there were no meaningful changes to the substance of these forms. Nevertheless, if you use the DOL's model forms (which we typically encourage employers to do), you should still use the updated forms going forward. (Look for the "Expires: 8/31/2021" note near the top right corner of the documents to be sure you have the most current version.) The DOL's forms are available here:
The FMLA can be a complicated law to navigate. For that reason, take this opportunity to review the forms for a primer / refresher on the FMLA process, the notice requirements, and the rights and responsibilities of both employers and employees. If you do business in a state that has its own state-law counterpart to the FMLA (sometimes called a "mini FMLA"), be sure you're meeting the requirements of both state and federal laws. If you have questions about the FMLA, please contact Megan Moritz (moritz@brownwinick.com) or another member of the BrownWinick Employment Practice Group.

Tuesday, June 5, 2018

Epic Systems v. Lewis: Arbitration Agreements and Employers' New, Protective Shield from Employee Lawsuits

By Megan Moritz and Ryan Shellady (BrownWinick 2018 Summer Law Clerk)


Introduction

A recent 5-4 Supreme Court decision marks a major victory for employers interested in a new tool for their arsenal to protect their businesses from potential class action litigation.

The Ruling

The case, Epic Systems Corp. v. Lewis, largely pitted the Federal Arbitration Act (“FAA”) against the National Labor Relations Act (“NLRA”). The FAA requires courts to enforce arbitration agreements according to their terms; the NLRA provides that employees have a right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The issue facing the Court:   Whether the NLRA’s protection of concerted activity trumps the FAA’s dictate to enforce arbitration agreements.

Epic Systems involved a group of employees, each of whom had entered into contracts with their employers under which he or she agreed to individualized arbitration for any and all work-related disputes that might arise during their employment. The employees in the underlying cases nevertheless attempted to litigate wage and hour claims in class or collective court actions.

The employers wanted the court cases thrown out per the contractual agreement to arbitrate, pointing to the FAA’s broad pronouncement that arbitration agreements should generally be enforced as written. The employees responded that the FAA’s so-called “savings clause” does not require enforcement of an agreement to arbitrate if that would violate some other federal law. They argued that conditioning employment upon an employee’s agreement to individualized arbitration violates section 7 of the NLRA because the employers were effectively preventing them from engaging in “concerted activity” of class or collective litigation.

The Court concluded that the NLRA does not displace the FAA, and the Court did not believe Congress intended the NLRA to specifically protect a right to class or collective actions. Where employers and employees have agreed to individualized arbitration, employees’ rights to engage in concerted activity under the NLRA are not infringed by enforcing the arbitration agreement.

The Takeaway

Historically, the National Labor Relations Board general counsel, as well as many courts, generally agreed that arbitration agreements providing for individualized proceedings were enforceable. In 2012, the NLRB reversed course – ruling that the NLRA essentially invalidated the FAA in this kind of case.  In the last two years, a number of courts have either agreed with or deferred to the Board’s 2012 decision. The Epic Systems case resolves any remaining confusion, and clarifies that nothing in the NLRA displaces the FAA, and the NLRA does not promise employees a right to join together to pursue legal actions – either in court or in arbitration.

If you have questions or would like to discuss whether including an arbitration provision in one of your company’s employment contracts is the best decision for your business , please contact Megan Moritz (moritz@brownwinick.com), Elizabeth Coonan (coonan@brownwinick.com) or another member of the BrownWinick Employment Practice Group.

Thursday, May 24, 2018

Immigration and Customs Enforcement (ICE) is Cracking Down on Employers: Expect I-9 Audits This Summer and Beyond

By Elizabeth Coonan

I-9 audits are on the rise. U.S. Immigration and Customs Enforcement (ICE) – the agency charged with enforcing U.S. Immigration laws - reports that between October 1, 2017 and May 4, 2018, the agency initiated approximately 2,282 employer audits (an average of about 321 audits per month). Contrast that with the prior fiscal year figures (1,360 employer audits, averaging about113 audits per month) and you can see where we the administration is heading.

If a nearly 300% increase in employer audits isn’t enough of a signal, try this:  ICE recently reported that it plans to open over 5,000 additional audits this summer alone, with a goal of reaching 15,000 I-9 audits per year. Industries most likely to be targeted are those with a history of hiring undocumented workers. Historical targets include companies in the agriculture, construction, leisure and hospitality, and manufacturing industries. As a consequence, employers should be prepared to conduct an internal audit and review internal recordkeeping practices to ensure compliance with federal law. Pay close attention to the completeness and accuracy of your forms. Common mistakes include missing information, failure to obtain signatures, failure to list the date of hire, among others. Not catching these mistakes can subject your company to fines and penalties.

Things to know:

Pursuant to the Immigration Reform and Control Act of 1986 (IRCA), employers are prohibited from hiring unauthorized aliens. To that end, the law requires employers to complete the Form I-9 for all employees hired on or after November 6, 1986. These forms must be kept on file for a period of three (3) years from the date of hire or one year from the date of termination, whichever is later.

Generally, employers will receive just three (3) days’ notice of an impending I-9 audit, during which time the employer must gather and produce an I-9 for existing (and sometimes former) employees. Additional documents such as organizational information, payroll records and employee rosters are also typically requested, so be prepared.

If you receive a Notice of Inspection, be certain to contact your attorney immediately as time is of the essence.

If you have questions or require assistance in reviewing company policies and procedures, please contact Elizabeth Coonan (coonan@brownwinick.com) or another member of the BrownWinick Employment Practice Group.

Monday, March 19, 2018

Are You Ready if a Sexual Harassment Scandal Hits Your Business? - Part III

By Megan Erickson Moritz & Mike Dee

Part III - Responding to potential issues

As outlined in our earlier posts, business leaders are subject to increasing scrutiny in light of the national dialogue happening right now. This movement is not limited to the arena of celebrities and politicians. Does your business know what to do if allegations are lodged against your CEO or other critical managers? 


Given the spotlight being shined on these issues, and the importance of ensuring a safe work environment free from unlawful discrimination, we have prepared a series of blog posts focused on relevant considerations for employers. So far, we’ve discussed the basics of requiredanti-harassment policies and reporting procedures. We’ve also covered a number of considerations when it comes to implementing thosepolicies, to ensure your practices conform to the written policies and procedures. Now we’ll shift our focus to discuss some steps to take when issues come to light. Below we outline some considerations as you approach investigations into potential workplace problems.

1.  It’s important to train managers, supervisors, and other decision-makers so they understand how to identify potential red flags.  If any supervisor or decision-maker becomes aware of a complaint or potential misconduct, even if he or she learns of it indirectly rather than by someone making a formal complaint, the company is “on notice” of the problem and needs to take steps to prevent further issues. Therefore, supervisors and decision-makers must be trained to understand what triggers their responsibility to report allegations of possible harassment or discrimination.
  - Practical Pointer:  Under a typical anti-harassment/discrimination policy, the person(s) to whom to report allegations is clearly set forth, and involves Human Resources (or other trained decision-maker – but for purposes of this article, we’ll refer to this trained individual as “HR”).  Consistency in how your business handles these complaints is absolutely critical.  Standard requests for information in a lawsuit involve how your company has handled other similar complaints (and sometimes not-so-similar complaints), so having the same person(s) handle these issues is strongly encouraged.  If a complaint or potential misconduct involves an officer, executive, or other C-Suite employee, especially if that person is the supervisor of whoever receives and handles these complaints, your business should have a plan in place to involve legal counsel who has experience with workplace issues.

2.  If an employee raises a potential issue, it is important managers are trained not to make any assumptions or jump to conclusions. Managers should encourage the employee to speak with HR, but they shouldn’t require it.  Regardless of whether an employee speaks with HR, once anyone on management is aware of the issue, the company is deemed to know about it and that manager MUST follow the reporting requirements and make it known.  Even if the manager doesn’t know who the employee’s complaint might involve, report the information and let the process move forward from there.    
  - Practical Pointer:  When a potential workplace issue comes to light, it is particularly important that management be mindful about what they put in writing. If a decision-maker has not been trained on how to appropriately handle an internal complaint, asking him or her to prepare documentation could be exacerbating the potential legal exposure. If a decision-maker is relaying sensitive information and also has questions about legal liability, they should copy in-house or outside legal counsel to protect those exchanges as privileged.

3.  When an issue comes to light, some level of investigation is likely appropriate. A business should take a thoughtful approach to the planning process.  One of the first questions you will need to consider/decide: who should conduct the investigation? Assuming a complaint involves an upper-level executive, it would be wise to engage your outside legal counsel to conduct or arrange for an independent, outside investigation.  
  - Practical Pointer:  If litigation ensues, remember that the company may need to disclose details about the investigation in support of its defense, meaning the investigator is likely going to be a witness.  We often arrange for legal counsel at another firm to conduct an investigation for our clients, when outside investigations are warranted; which allows us to continue representing our client without risk of waiving our privileged communications or having to withdraw as counsel because we are witnesses.  (Similarly, sometimes we are engaged by a company for the limited purpose of conducting an investigation.)

4.  An investigation should yield findings and conclusions about the underlying allegations, which are usually delivered in a final report from the investigator. Appropriate discipline, if warranted by the investigation’s results, MUST ensue. It is a critically important defense to a company that is sued by an employee for harassment or discrimination that a thorough investigation took place, followed by appropriate corrective/remedial actions. 
  - Practical Pointer:  Deciding the appropriate response to an investigation depends on numerous factors, such as the findings/conclusions of the investigation (Corroborated? Negated? Inconclusive?), any prior misconduct by the accused, past practices of the company, relative positions of the involved parties, and input from HR and legal counsel.  

A company cannot be afraid to implement appropriate discipline when appropriate, which is why every investigation must be conducted impartially and professionally, in an effort to determine exactly what happened.  The more transparent the process, coupled with an appropriate response to its results, the better equipped a business will be to mitigate disastrous consequences should the national spotlight on harassment hit your company.

If you have questions about or would like to discuss coordinating a potential workplace training or investigation, please contact Megan Moritz, Mike Dee, or another member of the Employment Law Practice Group.

Wednesday, March 14, 2018

US Department of Labor Announced New Payroll Audit Independent Investigation (PAID) Program

By Megan Erickson Moritz

The Wage and Hour Division (WHD) of the federal Department of Labor (DOL) announced a new pilot program aimed to help resolve potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA).  More information about the Payroll Audit Independent Determination (PAID) program will be available in the coming weeks, but the DOL has given some preliminary information about the program’s general framework. 

The DOL intends for this self-audit program to help employers proactively resolve potential FLSA violations.  The goals include resolving potential minimum wage and overtime issues more quickly, without (expensive) litigation, and to improve compliance generally. This new program will be tested for approximately six months, at which time the WHD will consider its effectiveness, potential changes, and whether the program will stick around.

So what incentive does an employer have to participate, you ask? If an employer participates and cooperates with the DOL to resolve any wage problems, the employer will still be required to pay all back wages due, but will not be assessed additional liquidated damages or civil monetary penalties.  Additionally, the preliminary materials suggest that an employee who accepts payment of back wages under the PAID program may be required sign a release of claims (although it will be specific to the identified violations and period of time for which the back wages are being paid).  

Employers who want to participate must first conduct a thorough self-audit to identify potential violations, affected employees, and relevant time frames. Thereafter, the employer may contact the DOL and ask to participate in the PAID program.  Assuming the DOL grants the request, it will ask the employer for additional information about the calculations and violations, and certifications that the employer reviewed various compliance materials and information, is not involved in any kind of pay litigation or dispute, and will make adjustments to comply going forward.  

If you have questions about the DOL’s new PAID program, coordinating an internal review or wage and hour audit, or related issues, contact wage and hour attorney, Megan Moritz, or another member of the Employment Practice Group, and we would be happy to assist you.

Wednesday, December 20, 2017

Are You Ready if a Sexual Harassment Scandal Hits Your Business? - Part II

By Michael Dee and Megan Moritz

Does your business have a handle on its policy enforcement?

As outlined in our earlier post, charges of sexual harassment have always posed the potential for very serious liability.  Historically, however, sexual harassment has been relatively difficult to prove from the legal perspective. That tide is turning, however, as technology and social media have armed victims with a much more effective medium for their voices to be heard:  voicing concerns in the court of public opinion before heading to a court of law.

This movement is not limited to the arena of celebrities and politicians.  Is your business ready to respond appropriately?  What if the allegations are against your CEO or other critical managers?  Are you prepared to properly address such complaints and protect your business?  

Given the spotlight being shined on these issues, and the importance of ensuring a safe work environment free from unlawful discrimination, we have prepared a series of blog posts focused on relevant considerations for employers.  Our first post focused on the basics of required anti-harassment policies and reporting procedures.  This is the second post of our series, which addresses implementing actual practices that comply with those policies and procedures.

As we previously discussed, employers must have a current, compliant harassment policy.  So then what do you do with this policy? 
  • Effectively communicate the policy. Employees must know not only that the policy exists, but also how it operates. Employees should be given the opportunity to ask questions.  Periodic refreshers should be circulated, and a copy of the company’s anti-harassment policies should be re-distributed from time to time.
  • Ongoing education and training on the policy.  As a corollary to the importance of effectively communicating the policy, we must underscore the importance of conducting recurring workplace training on EEO policies.  We recommend conducting training at least annually. Ideally, training would be conducted for all employees, as well as training geared specifically to supervisors (especially to help them identify potential red flags and how to properly handle complaints). We are beginning to see more C-Suite executives and board members seek out training opportunities; we believe this practice is not only wise, but particularly effective as conveying a consistent message about an organization’s commitment to equal employment opportunities. To best protect your business, the training should be live and interactive, rather than, for example, taking on-line training that involves reading instructional information and answering questions thereafter.  The training element goes hand-in-hand with maintaining a current, compliant harassment policy. 
  • Consistent enforcement.  The policy absolutely must be enforced, and it must be enforced consistently. Internal processes should be streamlined to ensure all complaints are addressed promptly. If an employee reports improper conduct in the workplace, employers must be committed to conducting a proper investigation by a trained investigator, and taking appropriate corrective action, up to and including termination of the perpetrator’s employment (even if it is the CEO).
  • No retaliation.   Employees who make or participate in making good faith complaints or who cooperate with an internal investigation must be protected from retaliation.  These assurances should not only be relayed directly in the policy, but also repeated to employees real-time when they are actually engaged in protected activity.  For example, if an employee raises an internal concern, the supervisor receiving the information should reiterate the company’s anti-retaliation policy, and encourage the employee to report any potential retaliation.  Anti-retaliation reminders should be given, for example, when conducting witness interviews during an investigation, when carrying out disciplinary measures to correct an identified issue, and when following up with a victim after an investigation and corrective measures have been taken.  Employees should be regularly encouraged to come forward with concerns about potential retaliation, and employers should continue monitoring the workplace to help protect against possible retaliation.
Employers need to put themselves in the best position to respond to sexual harassment and other misconduct as quickly and effectively as possible. 



Thursday, December 7, 2017

Are You Ready if a Sexual Harassment Scandal Hits Your Business?

By Michael Dee and Megan Moritz


For the past several months, we have been inundated with daily news about entertainers, media personalities, and politicians being accused of sexual harassment and worse. 

Victims of such conduct are no longer remaining silent – and rightfully so.  The era of responding to an employee’s allegation of sexual misconduct by a supervisor or coworker with “Oh, that’s just Charlie being Charlie,” are over (as an executive producer at CBS reportedly said in response to an employee’s complaints about Charlie Rose).
 
Charges of sexual harassment have always posed the potential for very serious liability.  Although sexual harassment historically has been difficult to prove from the legal perspective, technology and social media have armed victims with new outlets for their voices to be heard:  more and more women and men are voicing their concerns in the court of public opinion before heading to a court of law.

This movement is not limited to the arena of celebrities and politicians. Allegations of past and current misconduct in all workplaces is trending up. Does your business have the necessary policies and procedures in place to discourage such misconduct? Is your business ready to respond appropriately to internal or external allegations of harassment?  What if the allegations are against your CEO or other critical managers?  Are you prepared to properly address such complaints and protect your business?
  
Given the spotlight being shined on these issues, and the importance of ensuring a safe work environment free from unlawful discrimination, we have prepared a series of three blog posts focused on relevant considerations for employers.  This is the first post of that series, focused on the basics of required anti-harassment policies and reporting procedures.  The second post will address implementing actual practices that comply with these policies and procedures.  The third post will shift the focus to responding when issues come to light, and dealing with an investigation. 

Do you have a current, legally compliant harassment policy in place, and has it been communicated to all employees and managers?  If not, get one in place immediately!  Additionally:
  • Policies should be clearly worded, and should explain the kinds of prohibited conduct.
  • Ensure the policy has been disseminated to everyone and that everyone in the workplace knows it exists, and knows who to contact with workplace concerns. 
  • Because federal and state law, as well as EEOC guidance, are ever-evolving, policies should be periodically reviewed and updated by someone who keeps up with these changes. 
  • The policies should be redistributed periodically, and employers should also provide regular refreshers and training (at least annually).
  • Keep in mind policies prohibiting harassment should apply to everyone in the workplace – including top management, coworkers, vendors, customers, and others.
  • Compliant policies also need to incorporate required anti-retaliation provisions.

Does your policy incorporate a proper complaint-reporting mechanism?
  • The procedures spelled out in the policy for how an employee may report alleged misconduct are every bit as important as the policies prohibiting such conduct. 
  •  It is critical to have in place alternative avenues for a victim to report misconduct so that he or she feels comfortable making the report (i.e., is not forced to file a complaint directly with the alleged harasser).
  •  While employers may offer a complaint-reporting form, employers cannot require employees to make complaints in writing.  (This underscores the importance of training to ensure supervisors understand how to identify red flags, and what to do in response.) Nevertheless, it is a good practice to make such forms available as an option for reporting misconduct, in which case the forms need to be regularly reviewed and revised to remain compliant with current law. 

In the current environment of heightened awareness and social media that allows even one allegation of misconduct to take on a life of its own, you need to put yourself in the best position possible to respond quickly and appropriately.  BrownWinick has the personnel to help, but whoever you might consult, now is the time to ensure you have the policies and procedures in place to best protect your company.

Thursday, August 31, 2017

DOL Rule Raising Salary Threshold for Exempt Employees STRUCK DOWN

By Amanda Jansen

Remember that Department of Labor rule that was supposed to go into effect December 1, 2016 that would have raised the minimum salary for exempt employees from $455 per week to $913 per week? Either way, forget about it—it has now been struck down by a federal judge in Texas.

If you’re asking yourself, “Didn’t that already happen?,” the answer is “sort of.” Back in November of 2016, the court had entered a temporary injunction that stopped the rule from going to effect on December 1. The Obama administration’s Secretary of Labor, Tom Perez, immediately appealed that ruling to the Fifth Circuit Court of Appeals. Then President Trump took office, Alexander Acosta replaced Tom Perez as Secretary of Labor, and the DOL suddenly had a change of heart about the litigation and the fate of the rule. Meanwhile, Judge Amos Mazzant in the Eastern District of Texas, continued considering the case, having refused to stay the action pending the appeal.

Fast forward to August 31, 2017: ruling on a motion for summary judgment filed by 55 states and chambers of commerce (as well as former Governor Terry E. Branstad), Judge Mazzant concluded “the Department’s Final Rule described in 81 Fed. Reg. 32,391 is invalid.” The reasoning for the court’s decision is based on the Chevron doctrine from administrative law. Basically, the court found the Department of Labor overstepped its rulemaking authority by making a rule inconsistent with Congress’s intent under the FLSA to exempt from overtime-pay requirements bona fide executive, administrative and professional employees. The $913/week minimum salary threshold ($47,476) was so high that it would have made many employees who performed exempt duties (e.g., managers) non-exempt because they did not meet the minimum salary.

In a nutshell: 

The Final Rule more than doubles the previous minimum salary level. By raising the salary level in this manner, the Department effectively eliminates a consideration of whether an employee performs bona fide executive, administrative, or professional capacityduties.Congress was clear that the [exemption] determination should involve at least a consideration of an employee’s duties.The Department has exceeded its authority and gone too far with the Final Rule.
So, what now? While, theoretically, the DOL could appeal this ruling to the Fifth Circuit, it appears more likely that they will go back to the drawing board and revise the rule. On July 26, 2017 the Department of Labor published a Request for Information (RFI) asking for the public’s input on how executive, administrative, and professional employees should best be identified as exempt from overtime. You can view the RFI here and submit comments here. Comments will be accepted until September 25, 2017. 

Wednesday, August 2, 2017

Do I Need to Update Workplace Postings?


By Ann Kendell

YES! Iowa has updated its Job Safety and Health posting this year. There are some subtle changes, but the key difference is identifying how to report a workplace fatality or “hospitalization, amputation or the loss of an eye.”  This posting in available here.
YES! In July of 2016, the United States Department of Labor (USDOL) revised the FLSA posting to include a section on break time for nursing mothers and note that some workers may be incorrectly classified as independent contractors “when they are actually employees under the FLSA.”  This posting is available here.
YES! The USDOL also updated the “Employee Rights Employee Polygraph Protection Act” posting in July 2016.  This posting is available here.

State Minimum Wage Changes
MAYBE… The following states have had changes to their minimum wage requirements this calendar year: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Hawaii, Maine, Massachusetts, Michigan, Missouri, Montana, New Jersey, Ohio, Oregon, South Dakota, Vermont, and Washington. These changes may require updated workplace postings. (Not all states require postings). Similar to Iowa, some states may also have cities and counties with different minimum wage requirements – so it is important to confirm those requirements!

Iowa Minimum Wage
NO, BUT BE AWARE… In Iowa, the minimum wage of $7.25 is still the same; however there have been cities and counties enacting a different minimum wage for use within their jurisdictions.  These include: Johnson County ($10.10 as of 1-1-17), Linn County ($8.25 as of 1-1-17), Polk County ($8.75 as of 4/1/17 and scheduled increases on 1-1-18 and 1-1-19), and Wapello County ($8.20 as of 1-1-17). Therefore, the required posting has not changed in Iowa, but you need to be aware of these wage requirements for specific areas in Iowa.

HELPFUL LINKS TO STATE AND FEDERAL RESOURCES:
IWD’s “Required Employer Posters” lists for state and federal posters available here.
USDOL’s “Compliance Assistance Materials – Workplace Posters” (includes postings in other languages) available here.
USDOL’s “FirstStep Poster Advisor” available here.


Monday, July 17, 2017

NEW I-9 Form and Handbook for Employers is Released

By Elizabeth A. Coonan


As promised, USCIS issued a revised Form I-9, Employment Eligibility Verification.  The form is located here. This new form can be used beginning immediately or employers can use the form bearing revision date 11/14/2016 through September 17, 2017.  The revised form contains several changes, including:
  • The Office of Special Counsel is now referred to as “Immigrant and Employee Rights Section”
  • The agency  removed “the end of” from the phrase “the first day of employment.”
The List of Acceptable Documents was also revised as follows:
  • The agency added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • The agency combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • The agency renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.
The Handbook for Employers, located here, has been updated to reflect the changes noted above. 

If you have questions, please contact one of BrownWinick’s immigration attorneys, Elizabeth Coonan or Corrin Hatala, and we would be happy to assist you.

Friday, July 14, 2017

Alert: Another New I-9 Form

By Elizabeth A. Coonan


USCIS announced yesterday that it will release a new Form I-9, Employment Eligibility Verification, on July 17, 2017.  Employers will be required to use the form beginning September 18, 2017.  Check back here for additional information, which will be posted as it becomes available. If you have questions, please contact one of BrownWinick’s immigration attorneys, ElizabethCoonan or Corrin Hatala, and we would be happy to assist you.

Wednesday, June 7, 2017

New Secretary of Labor Alexander Acosta Withdraws Obama-Era Guidance

By Amanda Jansen

In previous client alerts, we had warned against the U.S. Department of Labor’s increasingly aggressive stance on subjecting independent contractors to federal labor laws, and melding one or more businesses together as “joint employers.” With the confirmation of Secretary of Labor, Alexander Acosta, that stance has abruptly changed.

The DOL today announced the withdrawal of two “Administrator Interpretations” from 2015 and 2016. The 2015 Interpretation had taken the controversial position that “most workers are employees,” as opposed to independent contractors. The 2016 Interpretation had announced the DOL’s intent to apply federal laws to more entities, “particularly where (1) the employee works for two employers who are associated or related in some way with respect to the employee; or (2) the employee’s employer is an intermediary or otherwise provides labor to another employer.”

While both Interpretations are now withdrawn and therefore of no effect, the DOL was careful to caution: “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law.” The withdrawal signals a more tempered enforcement position than what existed under former Secretary Tom Perez. As a practical matter, this means employers can have a little less anxiety about the DOL showing up for a surprise audit and deeming all contractors employees or deeming the employer a joint employer with related businesses. With that being said, employers should, of course, continue to follow existing laws and regulations unless and until they are formally changed.

One such regulation we continue to monitor closely is the 2016 “overtime rule” increasing the minimum salary for exempt employees from $455 per week to $913. As previously reported, that regulation was blocked by the Fifth Circuit Court of Appeals, but we are still waiting for final resolution of that appeal. Secretary Acosta is expected to propose a new regulation, potentially more in line with inflation from 2004, when the rule was last updated (which would be about $635 per week).

For any questions about classifying employees vs. independent contractor, potential joint-employer situations, or overtime, contact a member of the BrownWinick Employment Practice Group. 

Wednesday, April 26, 2017

USCIS Announces Green Card and EAD Redesign

By Elizabeth A.Coonan

U.S. Citizenship and Immigration Services (USCIS) announced it is redesigning the Permanent Resident Card (a.k.a Green Card) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. New cards will be issued beginning May 1, 2017. The purpose of the redesign is to incorporate security features and reduce tampering. USCIS notes that, “They are also part of an ongoing effort between USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and fraud.”  Employers will need to educate themselves about the look of the new cards so as not to improperly deny employment to otherwise authorized individuals during the I-9 process. For now, both the new and existing versions of the Green Card and EAD are acceptable for FormI-9, Employment Eligibility Verification and E-Verify. Some older Green Cards do not have an expiration date. These older Green Cards without an expiration date also remain valid. Have a look at this latest USCISNews Release to learn more or contact your BrownWinick Attorney

Monday, April 10, 2017

Pair of Appellate Decisions Show Protected-Class Employees Aren’t Term-Proof

By Amanda Jansen

We often receive calls from employers struggling to performance-manage employees who belong to one or more protected classes or who have engaged in protected activity.  To be sure, given the broad scope of anti-retaliation laws, holding these protected employees accountable for their violations of performance and conduct expectations, while trying to avoid a retaliation complaint, can feel like navigating between Scylla and Charybdis.  A recent pair of decisions from the Iowa Court of Appeals, however, reminds us that engaging in protected activity does not immunize employees from discipline or discharge

In Fitzgerald v. Hy-Vee, Inc., longtime employee Tim Fitzgerald suffered from various medical issues, including a knee injury, ensuing opioid addiction, and later, alcoholism.  Fitzgerald had used FMLA and butted heads with his superiors about his work restrictions.  The situation came to a head when Fitzgerald, while chatting with a coworker, called a female coworker a “c*nt,” in her presence and loud enough for her to hear.  There was evidence he had previously called this same woman a “bitch,” which added to her outrage. 

Hy-Vee, after investigating the incident, terminated Fitzgerald’s employment for violating the anti-harassment policy.  During the termination meeting, Fitzgerald broke down and disclosed he was addicted to pain medication and alcohol and said he needed treatment.  Hy-Vee did not process Fitzgerald’s termination paperwork for a couple of days, and during this time, Fitzgerald sought medical help for his addictions and presented Hy-Vee with a new FMLA request.  The termination stood, and Fitzgerald sued for disability discrimination and retaliation.

The district court granted Hy-Vee’s motion for summary judgment, and the Iowa Court of Appeals affirmed, holding no reasonable jury could find that Hy-Vee’s articulated reason for termination (calling a female coworker a “c*nt”) “was merely a pretext for intentional discrimination based on his claimed disabilities.”  Stay tuned, however; Fitzgerald has applied for further review of the decision by the Iowa Supreme Court. 

The mere fact that this case continues in litigation nearly five years after Hy-Vee terminated Fitzgerald serves as a reminder to employers to thoroughly document the basis for terminating employees (especially “high risk” terminations) and ideally, to vet and pressure-test the decision with legal counsel.

In McCrea v. City of Dubuque, Vicki McCrea, a longtime City employee, began to have (documented) performance issues around the time she got divorced and lost her mother to cancer.  She took FMLA leave, and other leave to tend to her mother’s estate (for which McCrea was the executor).  She soon thereafter began to report that her manager was chilly toward her.  McCrea made an internal complaint to HR, and her manager “became angry,” and began closely documenting McCrea’s comings and goings, personal cell phone use, personal use of the City’s copier and fax machine, etc. 

Tension began to mount, as McCrea’s manager sought, and was denied, permission to terminate McRae.  Ultimately, McRae presented a doctor’s note to the City saying her relationship with her manager was increasing her stress and anxiety, and that “a negative work environment could impact the performance of any employee.  [McCrea] is quite capable of performing every essential function outlined in her job description as she has done for the past 22 years with the city as long as she is not in this type of working environment.”  Nevertheless, McCrea continued working for this same manager, and while still employed, she filed two complaints with the Iowa Civil Rights Commission claiming discrimination based on sex, disability, and retaliation for her internal complaint (and in the second ICRC complaint, for her first ICRC complaint), as well as a lawsuit, and due to the stress of the environment, a request for FMLA leave (which the City did approve).

McCrea came in one day (the day her FMLA request was approved) and found several memos form her manager on her desk documenting various performance concerns.  She then confronted her manager, visibly upset, and said in a raised voice:  “This is harassment.  You need to back off or else.  Leave me alone.  You’ve been trying to get rid of me for five years, just do it.  Do you know what blood pressure is? …  This is killing me.”  She then said she was leaving for the day due to her anxiety.  A month later, the City summoned McCrea into the office and terminated her under the workplace violence policy for threatening her manager (i.e., saying “or else.”).

McCrea’s lawsuit proceeded to a bench trial, and the district judge found against her.  The Iowa Court of Appeals affirmed, finding:  (1) McCrea failed to prove her anxiety was severe enough to constitute a disability under the Iowa Civil Rights Act, and (2) McCrea failed to prove a causal connection between her complaints and her termination.  On the first point, the Court explained:  “McCrea has not named any major life activities—other than her specific workplace—that were affected by her anxiety.”  Citing a pre-ADAAA federal case, the Court said “‘an individual does not suffer a disability under the ADA if [their] disability does not prevent [them] from performing “a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.”’”  [Note this is arguably contrary to the EEOC’s current guidance that mental illnesses substantially limit brain function and thus almost always constitute a disability, as well as the Iowa Supreme Court’s direction to construe the Iowa Civil Rights Act broadly.]

On the no-causation conclusion, the Court relied heavily on the gap in time between McCrea’s first complaint and her termination:  “She filed complaints on September 11, 2013 and January 17, 2014, however, she was not fired until June 5, 2014—almost nine months after her first complaint.”  Acknowledging there was ongoing conflict between McCrea and her manager between these dates, the Court added: 

Much of McCrea’s complaints about how she was being treated at the office—things she invariably described as “retaliation”—involved the enforcement of rules, though she maintains they were only enforced against her.  “The antiretaliation provisions of Title VII and the ICRA do not … insulate an employee from discipline for insubordination or ongoing violation of the employer’s policies just because they occur after the plaintiff engages in protected activity.
(The argument about the rules only being enforced against McCrea was not discussed in the Court’s opinion.)

Of note, McCrea has (like Fitzgerald) applied for further review.  We will await the Iowa Supreme Court’s decision on these matters and update you as appropriate.  Follow WorkplaceWise to stay abreast of these and other developments.


In conclusion, while neither protected-class membership, nor engaging in protected activity, immunizes an employee from discipline or discharge, neither does having a valid reason for termination immunize an employer from litigation.  It is always advisable in these situations to consult legal counsel and weigh the likelihood and cost of litigation against the business cost of keeping a problematic employee in the workplace.  BrownWinick’s Employment and Labor Law attorneys stand by; ready to help you troubleshoot these matters.

Friday, April 7, 2017

H-1B Cap Has Been Reached for FY 2018

By Elizabeth Coonan


H-1B visas are used by many U.S. employers to supplement their workforce with highly-skilled foreign workers.  U.S. Citizenship and Immigration Services (USCIS) announced today that it has reached the congressionally mandated 65,000 visa H-1B cap for fiscal year 2018. USCIS also received a sufficient number of H-1B petitions to meet the 20,000 visa master’s cap. The agency has indicated it will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings and will continue to accept and process petitions that are otherwise exempt from the cap. If you have questions about the H-1B process, contact BrownWinick's immigration lawyers, Elizabeth Coonan or Corrin Hatala