Workplace Wise - Iowa Employment Law Attorneys

Wednesday, December 11, 2019

Electronic H-1B Lottery for FY2021 Announced

By Elizabeth Coonan and Caitlin Klingenberg


In an effort to streamline processes, U. S. Citizenship and Immigration Services (USCIS) announced on December 6, 2019 that it will be implementing an electronic registration process for the lottery selection of H-1B cap subject petitions. Under the new process,
employers seeking H-1B workers will complete a registration process to determine lottery selection, prior to preparing full petition documents. The registration period will run from March 1 to 20, 2020. The timeframe associated with notification of lottery selection is unclear, but we know that candidates selected in the lottery may begin to file their petitions on April 1, 2020.

Lottery System

By way of background, among the employer-sponsored visas available, the lottery system is unique to the H-1B visa. USCIS only conducts a lottery to determine which petitions will be granted if more petitions are received than the number of visas permitted under the statutory cap.  Currently, the cap is set to allow 65,000 beneficiaries through the general category and another 20,000 for individuals holding advanced degrees (i.e., masters or doctorate degrees). With approximately 200,000 petitions having been filed last year for a total of 85,000 slots, we can expect a lottery again this year.  

New Registration Tool

The new online registration process only requires basic information about the company and each requested worker, such as name and address of the company, contact information for an authorized signatory of the company, and name, degree level, and passport information of the beneficiary. USCIS is imposing a fee of $10/registration. USCIS has also indicated the possibility of suspending the registration for technical difficulties if their system crashes.  

Implications and Considerations

While the new registration system will undoubtedly result in cost savings for employers, it is critical to evaluate the employee’s qualifications in conjunction with the legal standards before committing to sponsorship. BrownWinick immigration attorneys Elizabeth Coonan and Caitlin Klingenberg stand ready and able to help you navigate the process. Contact us at coonan@brownwinick.com and klingenberg@brownwinick.com.

Tuesday, September 24, 2019

DOL's New Overtime Rule Released, Updating Earnings Thresholds

By Megan Erickson Moritz

Today, the U.S. Department of Labor released its final rule, updating earnings requirements for exempt treatment under the Executive, Administrative, and Professional (or "EAP") exemptions of the Fair Labor Standards Act ("FLSA").

Under the final rule:
  • The salary level requirement under the EAP exemptions will rise from $455 a week (or $23,660 annually), to $684 (or $35,568 annually). 
  • The total annual compensation for certain "highly compensated employees" also goes up, from $100,000 to $107,432 annually.  
  • Employers will be allowed to use certain non-discretionary bonuses, commissions, and incentive payments that are paid at least annually to satisfy up to 10 percent of the salary level requirement.
  • Certain special salary levels for workers in U.S. territories and in the motion picture industry are also being updated.
The final rule goes into effect on January 1, 2020. The DOL estimates that an additional 1.2 million workers will become eligible for minimum wage and overtime under the FLSA as a result of the changes under the new rule.

If you have questions about how the new rule may impact your business, please contact Megan Erickson Moritz or any of our Employment & Labor Law Practice Group members for more information.

Wednesday, August 28, 2019

I-9 Checkup: Everything Old is New... for Now

By Elizabeth Coonan

United States Citizenship and Immigration Services (USCIS) announced this week that until further notice, employers should continue using the Form I-9 currently bearing expiration date of 8/31/2019, even after the expiration date has passed.
The agency will provide updated information about the new version of the Form I-9 as it becomes available.
If you have questions about I-9 compliance or how your business should respond to an inspection notice, contact Elizabeth Coonan at coonan@brownwinick.com or the BrownWinick attorney with whom you work.

Friday, August 16, 2019

DEFINING HARASSMENT IN A NEW YORK STATE OF MIND

By Ann Holden Kendell

On August 12, 2019, the state of New York officially expanded its protections on unlawful harassment in the workplace. Some of the key changes include the following:
  • Elimination of the “severe” or “pervasive” standard. Employees only have to establish that they were subjected to “inferior terms, conditions or privileges of employment” as a result of their membership in a protected class. (Applies to alleged harassment based on an employee's membership in any protected class - not just sexual harassment.) 
  • Elimination of the “Faragher-Ellerth” affirmative defense. An employee’s unreasonable failure to follow the employer’s reporting procedures may still be used as evidence, but it will no longer end an employee’s claim.
  • No nondisclosure obligations. Settlement agreements on claims of unlawful discrimination cannot contain nondisclosure provisions unless the employee expressly wants such a provision to be included. (Previously only applied to settlement of sexual harassment claims.)
  • Non-employees are protected, too. “Non-employees” such as contractors, subcontractors, consultants, vendors or other parties engaged in a contractual relationship with the employer are protected under the anti-discrimination laws, too. 
  • More time to file claims. The time to file claims of sexual harassment is increased from one year to three years. (Implemented August 12, 2020.)

Should Midwest employers care what is happening in the Big Apple?
Under current federal laws, unlawful harassment is “unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information … where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” See https://www.eeoc.gov/laws/types/harassment.cfm. In short, unlawful harassment is a type of discrimination in employment that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and/or the Americans with Disabilities Act of 1990, (ADA).

Since the #MeToo movement, states other than New York have also made changes expanding protections beyond those provided by federal laws (California covered non-employees such as independent contractors, unpaid interns, and volunteers; Massachusetts passed a domestic workers bill of rights including protections against sexual harassment). Some states have also enacted mandatory harassment training laws (California, Connecticut, Delaware, Maine, and New York). While the legal standard for proving unlawful harassment in Iowa has not changed in reaction to the #MeToo movement, there have been several large verdicts awarded by Iowa juries on unlawful harassment and retaliation claims in the past few years.

The Importance of Training
In June 2016, the Select Task Force for the U.S. Equal Employment Opportunity Commission (EEOC) issued a report on its Study of Harassment in the Workplace. See https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf. The report noted that employer harassment training has been ineffective over the last 30 years and needs to change. A summary of the proposed practices can be found here: https://www.eeoc.gov/eeoc/publications/promising-practices.cfm.

One of the recommendations includes workplace “civility training.” As described in the report, this type of training “does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally.” The report noted the following regarding the importance of this training:

According to researchers, incivility is often an antecedent to workplace harassment, as it creates a climate of “general derision and disrespect” in which harassing behaviors are tolerated. For example, in studies of attorneys and court employees, researchers found significant correlations between incivility and gender harassment. Researchers also have found that uncivil behaviors can often “spiral” into harassing behaviors.
In response, many employers and employment attorneys have responded accordingly, incorporating civility training into regular workplace trainings. This type of training can reduce the instances of harassment under the “severe” or “pervasive” standard, as well as under the newer expanded standards for unlawful harassment. In short, an ounce of (effective) prevention is worth a pound of cure.

Wednesday, July 17, 2019

EEO Pay Data Collection Update: It is Time to Comply

By Elizabeth Coonan, BrownWinick attorney, with assistance from BrownWinick 2019 Summer Associate, Mariah Kauder


In 2017, the federal government suspended collection of Component 2 data from employers subject to EEO-1 reporting requirements. Component 2 data includes employee hours worked and pay information categorized by job type, race, ethnicity, and sex.  Following a contentious legal battle in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.), the Equal Employment Opportunity Commission (EEOC) is requiring Component 2 data be submitted by September 30, 2019. This includes data from calendar years 2017 and 2018. 


The Component 2 reporting requirement applies to all private employers, including federal contractors, with at least 100 employees. In addition, companies affiliated through common ownership or centralized management with other entities that bring the total number of employees up to 100 or more are also required to participate. Federal contractors with at least 50 employees and a federal government contract of $50,000 or more continue to be required to complete Component 1 of the EEO-1 form. However, this distinction does not apply to Component 2 reporting. The EEOC requires that submissions come through either the Component 2 EEO-1 Online Filling System or as an electronically transmitted data file. The online filing system became available on July 15th. Instructions for submission can be found on the EEOC’s website.


According to the EEOC, the information is used to inform civil rights enforcement and track employment patterns. Certain advocates of the data collection exercise contend that it will enable the EEOC to better identify and correct pay discrimination, while others feel it is just another administrative burden. Either way, the time is now for employers to identify where this information is stored and begin collecting it in order to meet the September 30th reporting deadline.


If you have questions about any of the information discussed above, please contact Elizabeth Coonan or another of BrownWinick’s Employment and Labor attorneys.


Wednesday, May 8, 2019

EEO-1 Pay Data Collection for 2017 and 2018

By Elizabeth A. Coonan


 The Equal Employment Opportunity Commission (EEOC) announced that employers must report pay data for 2017 and 2018 by September 30, 2019.  Pay data must be collected and reported with respect to race, sex and ethnicity. While the details regarding how to upload the required data have not yet been released, employers with 100 or more employees or federal contractors and subcontractors with 50 or more employees and at least $50,000 in federal contracts should be taking steps to ensure they have this data available for analysis and submission no later than September 30, 2019.  There is pending litigation that may affect the September 30 deadline. Check back here for updates and contact me or the BrownWinick Employment Attorney with whom you work for additional information.

Tuesday, April 2, 2019

DOL Proposes Updates to “Regular Rate” Under FLSA

By Megan Erickson Moritz

On March 28, 2019, the U.S. Department of Labor (DOL) announced another proposed rule to update regulations under the Fair Labor Standards Act (FLSA). The proposed rule would amend 29 CFR part 778 to revise the “regular rate” requirements under section 7(e) of the FLSA, 29 U.S.C. § 207(e). 

Under the default rule for calculating required overtime premium, employers must pay 1.5 times the “regular rate” of pay for all hours worked beyond 40 in a workweek -- by dividing total hours worked by total pay for each workweek. Under the FLSA, an employee’s regular rate pretty much includes all pay an employee earns (unless specifically excluded under the statute) – which can include much more than just his or her base hourly rate. For example, most bonuses, commissions, incentive pay, shift premiums, and other benefits generally need to be included in the regular rate.  This often complicates overtime calculations (especially quarterly or annual bonuses, which can require after-the-fact calculation of additional overtime), and can dissuade employers from offering perks to non-exempt employees.  According to the DOL, the new “proposed rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate. Because these regulations have not been updated in decades, the proposal would better define the regular rate for today’s workplace practices.”

The good news for employers:  the DOL says it intends to “encourage employers to provide additional and more creative benefits without fear of costly litigation.” The proposed rule aims to clarify when unused paid leave, bona fide meal periods, “call back” pay, reimbursements, benefit plans, and other ancillary benefits may be excluded from the overtime calculation. Specifically, the DOL proposes that the regulations confirm that employers may exclude the following kinds of benefits from an employee’s regular rate:
  • Wellness programs, such as onsite specialist treatment, gym access and fitness classes, 
  •  Employee discounts on retail goods and services;
  • Payments for unused paid leave, including paid sick leave;
  •  Benefit plans, such as accident, unemployment, and legal services,
  • Tuition reimbursement or student debt repayment; and
  •  Certain reimbursed expenses.
Most bonuses will still need to be included in the overtime rate calculation.  However, the DOL’s proposed rule attempts to elaborate on the types of bonuses that are and are not discretionary (and therefore, excludable) -- hopefully offering a little more clarity for employers. 

The Notice of Proposed Rulemaking was published on March 29, 2019, and the agency is accepting public comments through May 28, 2019.

If you have any questions about the DOL's proposal, or other wage and hour questions, please contact Megan Moritz (moritz@brownwinick.com) or another member of the BrownWinick Employment Practice Group.

Thursday, March 7, 2019

CLIENT ALERT: DOL Proposes New $35,308 Salary Threshold For Overtime Exemption

By Megan Erickson Moritz

Today, the U.S. Department of Labor announced a Notice of Proposed Rulemaking, (again) proposing a hike to the salary threshold requirement under certain exemptions from the Fair Labor Standards Act (FLSA). In short, the DOL says the change "would make more than a million more American workers eligible for overtime."  The proposal seeks to establish a new salary requirement of $679 a week ($35,308 a year). The proposal does not call for automated adjustments to the salary level -- a question that had been hotly contested.

The DOL set the current salary threshold of $455 a week ($23,660 a year) in 2004.  More information about the proposed rule is available here.  Once the rule is published in the Federal Register, the public has 60 days to submit comments for consideration by the Agency.

If you have any questions about the DOL's proposal, or other wage and hour questions, please contact Megan Moritz (moritz@brownwinick.com) or another member of the BrownWinick Employment Practice Group.


Friday, February 1, 2019

New Health Plan Option Designed for Groups of Small Employers

By Cynthia Lande, Alice Helle, Ellen Hames



Throughout 2018, the U.S. Department of Labor took steps to make it easier for small businesses to offer competitive health and retirement benefits to their employees. Association Health Plans (AHPs) will provide an innovative option for small firms to band together for health and retirement plan offerings.
BrownWinick has been monitoring these changes and has worked closely with the Iowa Insurance Division and expert insurance professionals in the state as the final rules and offerings for these plans were being finalized and adopted.  We will continue to monitor developments and provide updates as information is available. In the meantime, feel free to read "What You Need to Know - Association Health Plans" and if you have any question, please contact BrownWinick attorneys - Cynthia Lande / lande@brownwinick.com, Alice Helle / helle@brownwinick.com, or Ellen Hames / hames@brownwinick.com.

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.