On April 11, 2013, the American Immigration Lawyers Association Verification and Documentation Liaison Committee held a meeting with officials from the Immigration and Customs Enforcement (ICE) HSI Worksite Enforcement Unit. One of the issues discussed was the advance preparation of Section 1 of the I-9 form by electronic I-9 programs. This is an important issue for many employers who use electronic I-9 systems. Many electronic I-9 systems are integrated with other HR systems and seek to create efficiencies in the hiring process by inserting employee information in Section 1 from data in the employer’s intake program.

In what we believe is a fairly significant change in the agency’s position on this issue, ICE stated that advance preparation of Section 1 is not permissible, regardless of whether the preparer/translator section is completed and regardless of whether the individual employee provided the original information that is used.

Based on these statements, employers should be aware that an electronic I-9 program that involves advance preparation of employee information in Section 1 carries same legal risk. The agency’s position applies to an employer’s existing and future electronic I-9s.

It is not clear why ICE has taken this position. We are monitoring this change and hope to provide more information in the near future.

WIMBERLY, LAWSON, STECKEL, SCHNEIDER & STINE, P.C.

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By December 1, 2013, U.S. employers must be ready to comply with new hazard communications (“HazComm”) standards. The new rules bring the United States into alignment with other countries that have signed onto the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). They replace and expand upon OSHA's current hazard communication standard, first adopted in 1983, that required employers to alert workers to potentially dangerous chemicals and other substances to which they could be exposed in the workplace.

The new Globally Harmonized System still requires chemical manufacturers and importers to evaluate the chemicals they produce, import, or use, and provide hazard information to employers and workers by putting labels on containers and preparing safety data sheets. The old OSHA standard allowed chemical manufacturers and importers to convey hazard information on labels and material safety data sheets in a format of their choosing. The new GHS rules mandate standardized criteria for classifying chemicals according to their health and physical hazards and specify hazard communication elements for labeling and safety data sheets.

Think you know a chemical when you see one? You might be surprised. Ammonia and Sulphuric Acid - those are easy. How about wood? Wood dust is a hazardous substance classified under the OSHA HazComm standard. Several years ago, Britain determined that workers exposed to dust from cherry wood experienced a slightly higher-than-average incidence of cancer, which led to a GHS labeling requirements. The message? Take another look at those 2x4's. Your workplace may be chock-full of materials requiring labels under the new standards.

The new standard covers over 43 million workers who produce or handle hazardous chemicals in more than five million workplaces across the United States. Phased implementation begins now, and when fully implemented, the new rules will require standardized labeling, including the use of symbols, designed to be understood even by workers with low and limited literacy. Standardized Safety Data Sheets (“SDS”) will replace Materials Safety Data Sheets (“MSDS”) that have been in use for the past 20 years. OSHA anticipates that standardization will result in cost savings to American businesses and reduce trade barriers by harmonizing the U.S. with systems around the world.

All employers need to be aware of new training requirements. Employers could satisfy the current HazComm standard with one-time training, usually conducted at new employee orientation. To comply with the new standard, all employers who produce or use chemicals in the workplace must train all workers to recognize the new labels and symbols, and to use the safety data sheets, by December 1, 2013. Employers will be required to comply with all aspects of the new standard by June 1, 2016.

It’s not too early to identify what will be required in your workplace. Existing HazComm materials will help you choose the correct labeling and SDS for potentially hazardous materials, update labeling, and plan and schedule training sessions.

Two recent cases from the U. S. Supreme Court are good news for employers defending against class and collective actions under State and Federal wage and hour laws. In Genesis HealthCare Corp. v. Symczyk the Court ruled that when the claim of an individual who sued under the Fair Labor Standards Act (FLSA) was extinguished, the claims of others who might be “similarly situated,” but who had not yet joined the case, died with the original filer’s claim. The Court also let stand the lower court’s holding that a claimant who is offered full relief but rejects or ignores that offer is subject to having their case dismissed. In Comcast v. Behrend, a consumer class action case, the Court reaffirmed what it had held in Dukes v. WalMart: that difference among the plaintiffs and their claims may justify denial of class action status. It also held that courts must examine requests for class status very carefully, and not just give plaintiffs a green light. Given the popularity of both class and collective actions in wage and hour claims, these decisions definitely improve the outlook for employers defending against such claims.

Symczyk was filed as a collective action under §216(b) of the FLSA. In collective actions, other plaintiffs who are “similarly situated” to the individual filing the lawsuit must “opt in,” or file written consents to join the action. (In contrast, in class actions under Rule 23 like Behrend, everyone who has a similar claim is automatically included unless they take steps to “opt out.”)

Symczyk, a registered nurse, alleged that she and others who worked for Genesis had been denied pay because Genesis automatically deducted 30 minutes from their paid time for a daily lunch break but they often worked through lunch, missed their break, and thus were denied pay for hours worked. Early in the litigation, Genesis offered Symczyk a sum of money that represented full relief – the maximum amount she could win if she prevailed on all her claims – plus reasonable attorneys’ fees, under Rule 68 of the Federal Rules of Civil Procedure. Symczyk ignored the offer, and sought to proceed with the litigation: the district court determined that because Genesis had offered her full relief, even though she did not take it, her case was moot and should be dismissed.

Symczyk appealed, saying that even if her claim was dead, the claims of others who were “similarly situated,” having also been denied pay when they worked through meal breaks, should be allowed to proceed. The Court of Appeals for the Third Circuit agreed, and reinstated the case. Genesis asked for Supreme Court review. Its petition was granted, and the Supreme Court reversed the Third Circuit, holding that the claims of other potential plaintiffs who had not yet joined the lawsuit when it was dismissed due to Symczyk’s rejection of the Rule 68 offer did not survive the dismissal.

Perhaps the most controversial aspect of Symczyk lies in something the Court didn’t say: it let stand, without examining, the lower court’s decision condoning dismissal of the plaintiff’s case after she was offered, and refused (by ignoring the offer) full judgment satisfying her claims. An offer of judgment under Fed. R. Civ. P. 68 is an important tool in a defendant’s arsenal to short-circuit a lawsuit and avoid expensive litigation – a problem that is particularly acute in FLSA cases where the law requires the defendant to pay attorneys’ fees. If, as in Symczyk, an employer offers to pay the full amount of back wages, plus reasonable attorneys’ fees, a plaintiff who refuses that offer and continues litigation could possibly forfeit a collective action, also preventing the plaintiffs’ lawyers from collecting fees for services incurred after the date the offer is made. This is an important disincentive to lawyers eager to bring FLSA lawsuits.

Comcast was a Rule 23 “opt out” class action case. A group of customers sued the cable provider, claiming that they had been harmed because the company had created and abused a monopoly position in the market, denying them choices (and potentially lower prices) for cable service. The Supreme Court held that the case should not have been certified as a class action because individual questions regarding how different customers had been harmed predominated over class-wide questions. The Court reiterated that it had meant what it said in Dukes v. WalMart: that lower courts should probe beyond the pleadings, and conduct a rigorous analysis of the claims, before allowing a case to proceed as a class action.

Comcast matters to employers because shortly after publishing that opinion, the Supreme Court, citing Comcast, reversed and remanded to the 7th Circuit a case called Ross v. PBS Citizens, NA. Ross was a hybrid FLSA collective action/Illinois law class action where a group of former employees sued, alleging that they had been denied pay for hours worked. The Court of Appeals had affirmed a District Court decision that allowed these cases to proceed as class/collective actions: the Supreme Court said that was error, that the case should not have been so certified, and sent it back.

In both Symczyk and Comcast, the Supreme Court is making it more difficult to achieve class action status. This is important for employers because class action status makes wage and hour lawsuits more expensive and difficult to settle. The Court’s tacit approval of Rule 68 offers of judgment to moot a case may also make plaintiffs’ lawyers think twice about turning down an early (and fair) settlement.

Employers have long been warned that they must include at-will employment language in their employment policies, in order to preclude an employee from claiming that the employer’s employee handbook or other personnel policies constituted an enforceable contract. These provisions are often written by lawyers and referred to as “disclaimers.” During the last year, the National Labor Relations Board (NLRB) raised serious issues about the legality of certain employer disclaimers.

In early 2012, an NLRB Administrative Law Judge ruled that a written, at-will employment policy that employees were required to sign violated the Labor Act because it constituted an agreement by the employees never to act in concert with one another to change the at-will relationship. The particular language stated: “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” American Red Cross Arizona Blood Services Region, Cas. 28-CA-23443. Because of this decision and related complaints from the NLRB, employers began to worry that their most sacred management rights provision is now being claimed by the NLRB to be illegal.

Fortunately, the NLRB General Counsel subsequently issued two Advice Memoranda (Case 32-CA-086799 and Case 28-CA-084365) explaining its position and indicating that some types of disclaimers were indeed lawful. One of the disclaimers referring to at-will employment stated as follows:

“Employment with [the Employer] is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of [the employer] has any authority to enter into an agreement of employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.”

The Advice Memos indicated that the at-will language was not written in a way that requires employees to waive their rights. The memoranda confirmed that there really is no inherent conflict between the employment at-will doctrine and an employee’s right to engage in collective bargaining.

Editor’s Note: This issue illustrates that employment disclaimers, including at-will employment policies, need to be prepared or at least reviewed by an attorney specializing in labor and employment law. In addition to at-will employment language, most disclaimers include other issues including the issue of whether the policy is a contract and the employer’s right to modify such terms in the future.

Wimberly, Lawson, Steckel, Schneider & Stine

 3400 Peachtree Road, Ste 400 / Lenox Towers / Atlanta, GA 30326 / 404.365.0900

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