NLRB Delays Posting Rule Pending Court Decision

Following a federal appeals court’s decision last week to temporarily delay the National Labor Relations Board’s (Board) controversial posting rule, the Board has decided to delay implementation of the rule while the appeals court hears the case. 

In a statement issued last week, Chairman Mark Pearce stated the Board’s rationale for this action was to further “the strong interest in the uniform implementation and administration of agency rules.” The Board, however, did not provide a new effective date for the rule.  As oral argument in the case is not scheduled until September 2012, it will likely be months before the appeals court issues a ruling on the Board’s proposed rule.  The Board has stated that they will continue to fight all challenges to the new posting rule. 

In the meantime, employers nationwide are not required to post the Board’s posting pending further notice. However, this court ruling does NOT impact the current requirement that certain federal contractors post a separate Department of Labor (DOL) notice informing employees of their rights to organize under the National Labor Relations Act.

Compliance Alert: A New Form I-9 Is Coming

What You Need to Know About the Proposed Form I-9 Revisions … and When to Expect a New Form 

On March 27, 2012, U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register inviting public comment on a revised Form I-9. Employers are required to complete a Form I-9 for all newly hired employees to verify their identity and eligibility to work in the United States. Comments on the revised form will be accepted during a 60-day period, ending May 29, 2012. 

Although the overall I-9 process should not vary, the proposed revisions include numerous features to make the form more user-friendly, such as: 

• Expanded, clearer instructions and a revised layout
• New, optional data fields to collect the employee’s email address and telephone number
• New data fields to collect the foreign passport number and country of issuance  for individuals authorized to work with an I-94

Until the federal government releases a new version of Form I-9, employers should continue using the current form (with a revision date of 08/07/09, expiring on 08/31/12).

The approval process is likely to take several months, so we expect the new Form I-9 to be released this summer.

 In the meantime, we will keep you informed of ongoing developments. You can also count on ComplyRight™ to provide all the solutions employers need to handle this mandatory change, including updated forms and support materials.

Judge Approves Guam Aircraft Company’s Settlement of EEOC Religious Discrimination Lawsuit

A federal judge has approved the settlement by Aviation Concepts, Inc., an aircraft retailer and service provider in Guam, of a religious discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency recently announced.  Aviation Concepts will pay $51,000 and furnish extensive relief to settle the EEOC’s suit. 

The federal agency originally filed suit against Aviation Concepts in September 2011, charging that the company fired Armando Perez, an assistant mechanic and practicing Jehovah’s Witness, after he informed his supervisor that he did not wish to perform certain acts that conflicted with his religious beliefs.  Specifically, the EEOC alleged that a manager ordered Perez to raise the U.S. and Guam flags at the worksite in June 2010.  Although he explained that raising the flags would violate his religious beliefs, the manager ordered Perez to go home and fired him that same day for insubordination.

 Religious discrimination violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

USCIS Announces Expansion of E-Verify Self Check

Last week, the U.S. Citizenship and Immigration Services (USCIS) announced that Self Check, a free online service of E-Verify that allows workers to check their own employment eligibility status, is now available in all 50 states, Washington, D.C., Guam, Puerto Rico, the U.S. Virgin Islands and the Commonwealth of Northern Mariana Islands.  Launched in March 2011 by Secretary of Homeland Security Janet Napolitano and USCIS Director Alejandro Mayorkas, last week’s announcement delivers on the goal of expanding Self Check nationally within one year.

 “We are pleased to complete, ahead of schedule, our expansion of this important tool for employees,” said USCIS Director Alejandro Mayorkas during a press conference at the agency’s field office in Orlando, Fla. “Since our initial launch in March, approximately 67,000 people have used Self Check and we anticipate that participation will dramatically increase with service now available to individuals across the country.”

Self Check was developed through a partnership between the Department of Homeland Security (DHS) and the Social Security Administration (SSA) to provide individuals a tool to check their own employment eligibility status, as well as guidance on how to correct their DHS and SSA records. It is the first online E-Verify service offered directly to workers. Available in English and Spanish, Self Check enables individuals to enter the same information into Self Check that employers enter into E-Verify.

Since the program’s inception, thousands of individuals have used Self Check, available in English and Spanish, to access their federal employment eligibility records and for guidance on how to correct potential record discrepancies prior to the hiring process.

In August 2011, Self Check became a bi-lingual service available to users in both English and Spanish, broadening the scope of the program to members of our U.S. workforce who are more comfortable reading Spanish-language materials.

EEOC to Hold Meeting on Pregnancy and Caregiver Discrimination

On Wednesday, February 15, 2012, the Equal Employment Opportunity Commission (EEOC) plans to hold a public meeting to discuss discrimination against pregnant workers and workers with caregiving responsibilities. According to the meeting agenda, three separate panels will address the following topics: understanding pregnancy and caregiver discrimination in today’s workplace; statutory framework and enforcement efforts; and the way forward: implications for the future.

 In April 2009, the EEOC released a technical assistance document outlining employer best practices for avoiding discrimination against workers with caregiving responsibilities. More recently, the Department of Labor issued a proposed rule that implements the Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for FY 2010 (FY 2010 NDAA), a law that, among other provisions, extends current military caregiver leave entitlements. At this point, it is unclear whether the agency plans to update its guidance regarding either pregnancy- or caregiver-related employment discrimination.

U.S Department of Labor Announces Comprehensive Final Rule on H-2B Foreign Labor Certification Program Requiring New Poster

The U.S. Department of Labor’s Employment and Training Administration and its Wage and Hour Division recently announced a final rule to improve the H-2B temporary nonagricultural worker program. The rule, to be published in the Feb. 21 edition of the Federal Register, includes changes to several aspects of the program to ensure that U.S. workers receive greater access to jobs and strengthens worker protections.

The H-2B program allows the entry of foreign workers into the United States on a temporary basis when qualified U.S. workers are not available, and the employment of those foreign workers will not adversely affect the wages and working conditions of U.S. workers. The H-2B program is limited by law to a cap of 66,000 visas per year.

“The H-2B program is designed to help businesses when there is a temporary shortage of U.S. workers,” said Secretary of Labor Hilda L. Solis. “The rule announced today will ensure that the program is used as intended by making these jobs more accessible to U.S. workers and providing stronger protections for every worker.”

Among other requirements, the rule requires employers who employ H-2B employees to post a DOL-provided poster in English detailing H-2B and corresponding workers’ rights and protections in a conspicuous location at each worksite. The employer must post additional posters if a significant portion of workers are not fluent in English and if DOL provides the poster translated into their language.  H-2B employees are typically used in the following industries: hospitality, restaurants and bars, hotels/motels, resorts and theme parks, construction, warehouse, and retail stores.

The rule will be effective on April 23.

U.S. Department of Labor Considers Development of Data Tool to Combat Pay Discrimination

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is considering the development of a new data tool to collect information on salaries, wages and other benefits paid to employees of federal contractors and subcontractors. The tool would improve OFCCP’s ability to gather data that could be analyzed for indicators of discrimination, such as disparities faced by female and minority workers. To provide an opportunity for the public to submit feedback, the department published an advance notice of proposed rulemaking in the Aug. 10 edition of the Federal Register.

OFCCP enforces Executive Order 11246, which prohibits companies that do business with the federal government from discriminating in employment practices – including compensation – on the basis of sex, race, color, national origin or religion. Last year, the agency announced plans to create a compensation data tool in the department’s fall 2010 regulatory agenda. In addition to providing OFCCP investigators with insight into potential pay discrimination warranting further review, the proposed tool would provide a self-assessment element to help employers evaluate the effects of their compensation practices.

“Today, almost 50 years after the Equal Pay Act became law, the wage gap has narrowed, but not nearly enough,” said Secretary of Labor Hilda L. Solis. “The president and I are committed to ending pay discrimination once and for all.”

The Labor Department’s Bureau of Labor Statistics reports that in 2010 women were paid an average of 77 cents for every dollar paid to men. In addition to the gender gap, research has shown that race-and ethnicity-based pay gaps put workers of color, including men, at a disadvantage. Eliminating compensation-based discrimination is a top priority for OFCCP.

“Pay discrimination continues to plague women and people of color in the workforce,” said OFCCP Director Patricia A. Shiu, a member of the president’s National Equal Pay Enforcement Task Force. “This proposal is about gathering better data, which will allow us to focus our enforcement resources where they are most needed. We can’t truly solve this problem until we can see it, measure it and put dollar figures on it.”

The notice poses 15 questions for public response on the types of data that should be requested, the scope of information OFCCP should seek, how the data should be collected, how the data should be used, what the tool should look like, which contractors should be required to submit compensation data and how the tool might create potential burdens for small businesses. The proposal will be open to public response for 60 days, and the deadline for receiving comments is Oct. 11.

USCIS Launches I-9 Central on USCIS.gov

The U.S. Citizenship and Immigration Services (USCIS) recently launched I-9 Central, a new online resource center dedicated to the most frequently accessed form on USCIS.gov: Form I-9, Employee Eligibility Verification. This free, easy-to-use website builds on recent employment-related enhancements by providing employers and employees simple one-click access to resources, tips and guidance to properly complete Form I-9 and better understand the Form I-9 process.

“I-9 Central is the latest in our ongoing efforts to better serve the 7.5 million employers who use Form I-9 every time they hire an employee,” said USCIS Director Alejandro Mayorkas. “It provides critical information for all employers – whether they hire a single employee or hundreds – in an accessible, intuitive and comprehensive online format.”

The launch of I-9 Central follows the introduction of other important USCIS employment-related resources. These resources include E-Verify Self Check, a service launched in March that allows workers and job seekers in the United States to check their own employment eligibility status online, and an updated “Handbook for Employers: Instructions for Completing Form I-9 (M-274)” published earlier this year.

I-9 Central includes sections about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. I-9 Central also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors, and answers to employers’ recent questions about the Form I-9 process.

Keeping Track of Wages: The U.S. Department of Labor Has an App for That!

Last week, the U.S. Department of Labor announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. Glossary, contact information and materials about wage laws are easily accessible through links to the webpages of the department’s Wage and Hour Division.

Additionally, through the app, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment.

This new technology is significant because, instead of relying on their employers’ records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

“I am pleased that my department is able to leverage increasingly popular and available technology to ensure that workers receive the wages to which they are entitled,” said Secretary of Labor Hilda L. Solis. “This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay.”

The free app is currently compatible with the iPhone and iPod Touch. The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

DOL Launches National Outreach Campaign to Protect Workers from Heat-Related Illnesses

Secretary of Labor Hilda L. Solis recently announced a national outreach initiative by the U.S. Department of Labor’s Occupational Safety and Health Administration to educate workers and their employers about the hazards of working outdoors in the heat and steps needed to prevent heat-related illnesses.

“If you’re working outdoors, you’re at risk for heat-related illnesses that can cause serious medical problems and even death,” said Secretary Solis. “But heat illness can be prevented. This Labor Department campaign will reach across the country with a very simple message – water, rest and shade.”

Each year, thousands of outdoor workers experience heat illness, which often manifests as heat exhaustion. If not quickly addressed, heat exhaustion can become heat stroke, which killed more than 30 workers last year.

OSHA has developed heat illness educational materials in English and Spanish, as well as a curriculum to be used for workplace training. Additionally, a new webpage provides information and resources on heat illness – including how to prevent it and what to do in case of an emergency – for workers and employers. The page is available at http://www.osha.gov/SLTC/heatillness/index.html.