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COMPANY RAIDED IN MISSISSIPPI IMMIGRATION MATTER FIGHTS BACK

Most readers are familiar with the fact that on August 7 of this year, ICE personnel arrested around 680 persons during raids of seven food processing plants in Mississippi.  On September 3, 2019, one of the plants raided, Koch Foods of Mississippi, LLC, filed a Motion to Suppress and Return of Property taken during the raids, contending that the raid was not legal, and that the "exclusionary rule" should bar the government's use of the information illegally seized during the raid.  The exclusionary rule applies as an application of the Fourth Amendment to the U.S. Constitution, which applies when government authorities exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights in searches and seizures of a person's or entity's property.

The company's memorandum supporting its Motion basically contends that the affidavit supporting the search warrant did not contain any evidence that the company knowingly employed persons lacking sufficient work authorization.  The company cites law to the effect that when a challenged search is conducted pursuant to a warrant, the court must examine whether there is probable cause supporting the warrant, and whether the good-faith exception to the exclusionary rule applies even in the absence of probable cause.  The company contends under this analysis that the search warrant executed at the Morton plant was not obtained in good faith, and it was not objectively reasonable.  Instead, the affidavits leading to the warrant are founded on the presumption that certain deported persons had previously worked at the Morton processing plant, so that it should be assumed that the company must have known that they were hiring unauthorized workers.  The company's actions are probably in anticipation of possible penalties that ICE may charge after completing its audit of the facilities, and also an effort to restore the company's reputation in the community.

EEO-1 PAY DATA DEADLINE LOOMS

In case you haven’t heard, September 30, 2019 is the deadline for employers with more than 100 employees to file a new electronic form with the Equal Employment Opportunity Commission (EEOC) disclosing detailed pay data for 2017 and 2018.  EEOC has set up an electronic portal for these submissions, which must include detailed compensation data for 10 job categories, identifying employees by the same racial, ethnic and sex groupings used when submitting demographic data in earlier EEO-1 forms.

This comes amid ongoing litigation between an advocacy group and the EEOC, pursuant to an order from the D.C. District Court.  (The case has been appealed, but not stayed, which means that employers are expected to comply even as the appeal is pending.)  The push to collect pay data by demographic groupings, called “Component 2” of the EEO-1 form, originated in the Obama Administration: the Trump Administration put the Obama-era regulations on hold, but they was revived in a lawsuit, National Women’s Law Center, et al., v. Office of Management and Budget, et al.  The Court has ordered the EEOC to ensure Component 2 compliance at levels at least as good as those for the regular EEO-1 submissions by the September 30 deadline.  Interestingly, EEO-1 compliance levels run at about two-thirds of covered employers, and EEOC has always held the door open for filings for at least 11 months after the due date.  As of September 5, EEOC reported that only 13.4% of covered employers had submitted the Component 2 information.

Employers are legitimately concerned about the confidentiality of sensitive compensation data and worry that their information will be harvested by private attorneys seeking to file pay discrimination lawsuits.  We recommend that employers filing submissions use the “comment” box on the form to note that (1) the information provided is considered by the employer to be private, privileged and confidential, and is submitted subject to the EEOC’s assurance that it will not be disclosed; (2) the employer made its best efforts to gather information as required based upon dates set retroactively, and therefore the information provided is qualified due to various data-gathering issues; and (3) employees in the various pay “bands” do not perform equal work. 

The required form is 15 pages long and must be submitted electronically.  It’s not clear whether extensions will be granted, but some covered employers already have asked for hardship waivers.  And it’s not clear what the penalty for noncompliance would be: there’s only one reported case of an employer being fined for failing to timely submit the regular EEO-1 form, and that fine was just $100.

EEOC has prepared detailed guidance on how to complete the form, which may be viewed at https://eeoccomp2.norc.org/info. The Commission also is offering answers to employers’ frequently asked questions at: https://eeoccomp2.norc.org/faq.  A word of warning:  after the electronic report is submitted, the employer will not be able to access it.  If reports are due in future years, the employer will have to start from scratch.   To avoid having to re-invent the wheel, a prudent employer will take care to create and retain backup copies of all documentation submitted.

If the National Women’s Law Center case is reversed by the D.C. Circuit, the Component 2 requirement will go away, and employers who fail to file on time presumably will be excused.  But as of this writing, the court has ordered employers to file by September 30.  Further, on September 11, 2019, the EEOC announced that the filing of Component 2 may be a one-time event, as the EEOC states the burden to collect the data is higher than previously estimated and deserves additional examination before the Agency seeks White House approval for more pay reporting.  The previous pay collection requirement is set to expire after September 30, so there is additional temptation to employers to employers to file late or not at all.  Stay tuned!

USE OF "TESTERS" PLAGUES EMPLOYERS IN LAWSUITS

This writer has experienced the "tester" issue in various ways readers will find quite interesting.  First, a "tester" is generally considered someone who seeks access or employment in a way designed solely to generate a legal case.  A number of years ago, and this writer represented a trucking employer at which an immigrant driver participated in a telephone interview.  The driver spoke with a heavy accent and "bated" the employer representative into questions about his accent and critical comments about his inability to communicate properly.  The driver applicant immediately filed a federal court lawsuit against the employer.  The employer did not want to bear the expenses of the litigation, and instructed this writer to attempt to immediately settle the case. 

After talking with the plaintiff driver over the telephone, who did not have counsel, it was obvious that the person was totally unreliable.  The circumstances were such that a face-to-face meeting with the driver was necessary to get the settlement release signed and then provide the settlement check to the driver. 

After getting the settlement agreement signed and paying the plaintiff driver applicant, the driver said that he had done this identical thing about 30 different times.  Actually, he made a living out of "setting up" employers in this manner, pocketing the proceeds, without even the need of an attorney to share the profit.

Fast forward a number of years, and this firm has had recent similar experiences involving a "tester" under the Americans with Disabilities Act (ADA).  In this situation, one of the firm's clients was sued by a woman who claimed that she had visited the client's shopping center and the parking, entrance, bathroom and other features of the shopping center did not comply with the public accommodation provisions of the ADA.  Wimberly & Lawson quickly found out that this female plaintiff was a named plaintiff in more than 100 lawsuits over the last couple of years.  In fact, published reports in the Atlanta newspapers indicated that the plaintiff's attorney filed several hundreds of lawsuits under the ADA, apparently sending around testers to seek violations.  The website of the attorney suggested that he pays his clients finders' fees to root out alleged ADA violations.

Some consider such tactics a fair fight for civil rights, while others contend that the tester tactics are an unethical attempt to get quick settlements from small employers who found it cheaper to pay plaintiffs' attorneys than to fight.  One such defendant who settled subsequently filed a class-action lawsuit targeting the plaintiffs' attorney, a business associate, and several of his clients as running an organized criminal campaign to squeeze largely minority-owned businesses with no real motive to make them more accessible to the disabled.  In at least one recent development in Florida, a federal judge sanctioned an attorney who had filed more than 650 ADA cases across the state.  The judge ordered the attorney to pay back settlements and pay other penalties. 

Employers should remember that the ADA public accommodation provisions applies to employers too, and not just other commercial establishments.  In fact, a number of recent lawsuits have been filed concerning inaccessible procedures for job applicants with disabilities.

For readers who consider such developments new, please remember that the use of "testers" has occurred for many years in the construction industry, where they are often referred to as "plants."  Such plants are typically union organizers or their agents and they seek employment with the goal of building NLRB charges or other litigation against the construction industry employer, sometimes as an effort to run the employer out of business.  This writer experienced one of those situations recently in the construction industry, whereby the union plants engaged in a work stoppage and baited the employer into firing them.  The NLRB found that the firings were illegal and ordered those employees reinstated with back pay.  Ultimately, a majority of the "strikers" returned to work, only to call a second strike.  As part of the NLRB compliance proceedings, the Board found that none of the strikers were due any back pay, apparently because they were employees of the union. 

The bottom line is that there are persons and entities that have a practice of "setting employers up" for various types of legal claims.

BOARD GIVES EMPLOYERS BROAD RIGHTS TO INSIST UPON MANDATORY ARBITRATION AGREEMENTS PROHIBITING COLLECTIVE ACTIONS

This newsletter in the past has published many articles about the Epic Systems Supreme Court ruling, which holds that employers may enter into individual arbitration agreements with employees requiring almost all disputes to go to individualized arbitration and waiving class and collective actions.  In a ruling on August 14, 2019, the NLRB broadened and clarified employer rights in this regard.  Cordua Restaurants, Inc., 368 NLRB No. 43. 

The NLRB addressed several important questions involving mandatory arbitration agreements following the Supreme Court's Epic Systems decision.  Specifically, the Board held:

  • Employers are not prohibited under the NLRA from informing employees that failing or refusing to sign a mandatory arbitration agreement will result in their discharge.
  • Employers are not prohibited under the NLRA from promulgating mandatory arbitration agreements in response to employees opting in to a collective action under the Fair Labor Standards Act or state wage-and-hour laws.
  • Employers are prohibited from taking adverse action against employees for engaging in concerted activity by filing a class or collective action, consistent with the Board's long-standing precedent.

What this means for employers:

  • Employers are allowed to condition employment on signing mandatory arbitration contracts.
  • Employers can warn workers that they will be fired if they fail or refuse to sign mandatory arbitration agreements.
  • Employers can require employees to sign mandatory arbitration pacts in response to workers opting into FLSA collective actions or class actions brought under state wage-and-hour laws. In those agreements, employees must agree that they will not opt into an existing collective action. This is a powerful weapon for an employer to wield in response to the filing of a collective action.

According to a 2018 study by the Economic Policy Institute, more than half of nonunion, private sector employers have mandatory arbitration procedures. However, these agreements are not "one size fits all." It is advisable to contact qualified counsel to craft an agreement that meets the needs of your particular business and workforce.

MISCLASSIFYING WORKERS AS INDEPENDENT CONTRACTORS DOES NOT VIOLATE LABOR ACT

The National Labor Relations Board (NLRB) ruled on August 29, 2019 that employers do not violate the National Labor Relations Act (NLRA) solely by misclassifying employees as independent contractors.  The Board majority held that an employer's communication to its workers of its opinion that they are independent contractors does not, standing alone, violate the NLRA even if that opinion turns out to be mistaken.  According to the decision, such communication does not inherently threaten those employees with termination or other adverse action if they engage in activities protected by the NLRA, nor does it communicate that it would be futile for them to engage in such activities.  Velox Express, Inc., 368 NLRB No. 61. 

Editor's Note:  This NLRB ruling is critically important, as otherwise the contractor status of many entities across the country could have been put in doubt by the simple filing of a charge with the NLRB.  Instead, the NLRB decided that future legal battles about misclassification are to be decided in this context in other tribunals.

It should be noted that the outcome may have been different had the respondent in the case indicated to its workforce that union organizing or other protected concerted activities would be futile, or threatened purported independent contractors with reprisal for taking such actions.  The ruling left room for the finding of a violation in such circumstances, as all the Board did in the Velox case was to rule that an employer's communication of its position that its workers are independent contractors does not threaten reprisal or futility.  


Wimberly, Lawson, Steckel, Schneider & Stine

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

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