Employment Law Lookout

A “Real Administrative Rat Mess” (or Takeaways from SCOTUS Oral Arguments in EEOC v. Abercrombie & Fitch)

Posted in EEOC, Workplace Arbitration

By: Dawn Reddy Solowey and Ariel Cudkowicz

On February 25, 2015, the U.S. Supreme Court heard oral argument in EEOC v. Abercrombie & Fitch Stores, Inc., a closely-watched religious discrimination case that we’ve blogged about before.

The EEOC’s petition for certiorari framed the legal question this way: “Whether an employer can be liable under Title VII for refusing to hire an applicant or for discharging an employee based on a ‘religious observance and practice’ only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”

In practical terms, the Court’s decision is expected to focus on what level of knowledge an employer must have that an employee or applicant’s religious practice may conflict with a job requirement, and from what source, before it has a duty to consider accommodation. Is it the employee’s burden to alert the employer, as the Tenth Circuit held below? Or is actual notice to the employer from any source (even if it is not the employee) sufficient? Or, as the EEOC contends, is even something less than the employer’s actual notice sufficient to trigger the duty to consider accommodations?

Takeaways for Employers and Employees

What did we learn from the oral argument? Three key takeaways: First, many of the justices seemed skeptical of the company’s position that only actual knowledge from the applicant of the religious belief was adequate to put the employer of notice of the duty to accommodate. Second, the justices seemed keen to explore precisely what level of notice, short of actual knowledge from the applicant, would be adequate. Third, the Court wrestled with the practicalities, namely how can the employer raise the issue with the applicant without engaging in the very stereotyping that the law prohibits?

10-Second Recap of the Facts

Seventeen year-old Samantha Elauf, who identifies herself as Muslim, and claimed to have worn a headscarf for years for religious reasons, applied for a sales floor position in an Abercrombie store in Tulsa, Oklahoma. At the job interview, to which she wore the headscarf, Ms. Elauf said nothing to Abercrombie about the fact that she was Muslim. She did not bring up the subject of the headscarf, or say that she wore it for religious reasons, that she felt a religious obligation to do so, or that she would need an accommodation from the retailer’s “Look Policy.” However, her interviewer testified that she assumed that Ms. Elauf was Muslim, and wore the head-covering for religious reasons. There was evidence that the headscarf influenced Ms. Elauf’s interview scores, and in turn, the company’s decision not to hire her.

The Courts Below

The district court granted summary judgment for the EEOC. The Tenth Circuit not only reversed that judgment, but granted summary judgment to Abercrombie. The Tenth Circuit held that the burden is squarely on the applicant or employee to advise the employer that he or she has a religious practice that conflicts with a job requirement, because religion is an inherently individual matter, and he or she is uniquely qualified to know those personal religious beliefs and whether an accommodation is necessary. The court rejected the EEOC’s argument that the employer has a duty to attempt reasonable accommodation when the employer has notice from any source that the applicant or employee has a religious belief that conflicts with a job requirement.

Oral Argument

Skepticism for Abercrombie’s Position

Abercrombie’s lawyer faced a tough crowd. Many of the justices appeared skeptical of Abercrombie’s position that only actual knowledge from the applicant of the religious belief was adequate to put the employer of notice of the duty to accommodate.

For example, Justice Breyer characterized the Tenth Circuit’s position this way: “Employer, unless you receive direct, explicit notice that what she wants to wear is based on religion and she wants an accommodation, unless you receive direct, explicit notice from her, you’re home free to do what you want.”

Justice Ginsburg suggested that the employer had superior knowledge of its work rules, asking, “How could [the applicant] ask for something when she didn’t know the employer had such a rule?”

And Justice Alito challenged the company’s counsel as to whether Abercrombie was “willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.”

Only Justice Scalia appeared to endorse the company’s position fully. Justice Scalia said that the Tenth Circuit’s rule “avoids all problems” by making clear that “if you want to sue me for denying you a job for a religious reason, the burden is on you to say, I’m wearing the headscarf for a religious reason.”

Exploration of What Level of Notice Suffices

Having seemed to discount the possibility that actual notice from the applicant was required, any of the justices’ questions explored precisely what level of notice would be adequate.

Even the Court’s more liberal justices pushed the EEOC to define what level of notice, short of actual notice, was adequate. Justice Kagan asked the EEOC’s counsel whether, if the rule were that the employer is on notice with “less than certainty, how much less than certainty is it?”

Justice Breyer appeared to endorse a rule that “if the employer believes, thinks, this woman is religious and needs an accommodation and he’s right,” that the employer would be obligated to explore an accommodation. Justice Breyer challenged Abercrombie’s position that such a rule was “unadministrable,” pointing out that many areas of the law turn on proof of a “belief.”

However, at one point, Justice Breyer said that he was “sort of interested – hardly a ringing endorsement – in Abercrombie’s counsel’s suggestion during argument that the employer’s knowledge would have to be, if not from the applicant, at least “traceable” to the applicant.

Practical Nuts & Bolts

The justices’ questions revealed a desire to enunciate a rule that would be practical to implement for both employers and applicants.

Abercrombie’s concern that the EEOC’s position would promote stereotyping seemed to resonate with at least some of the justices. Chief Justice Roberts challenged the EEOC that its solution “may promote stereotypes to a far greater degree than what you’re objecting to.”

Indeed, Abercrombie’s counsel argued that an employer faced with the EEOC’s rule could only protect itself by “training their managers to stereotype about possible religious beliefs because a judge or jury might later find that . . . an employer correctly understood, or must have correctly understood” that the applicant had a religious belief incompatible with a workplace rule.

The justices even tried out various scripts that an employer might use to broach the subject with an applicant.   Justice Sotomayor initially suggested, “So why can’t the employer just simply say, we have a Look Policy that doesn’t permit beards. Can you comply with that policy?” After some debate about whether a religious employee can comply with the policy, even if it makes the employee religiously uncomfortable, Justice Alito suggested a revised formulation: “Well, couldn’t the employer say, we have a policy [of] no beards . . . do you have any problem with that?” At least Justices Sotomayor and Ginsburg expressed support for such a rule during the course of the argument.

The justices make it sound easy, but the pitfalls for employers are many. The rule leaves the interviewer having to draw an on-the-spot inference from the way the employee looks — or possibly other markers, such as a last name — about the employee’s potential religion, and which workplace rules might cause a conflict. There is also the risk that an applicant will misinterpret a reference to religious attire or grooming as evidence of a discriminatory animus against the applicant’s religion.

Justice Breyer distilled the essence of Abercrombie’s argument this way: “There are millions of people who are practicing one religion or another where you get a clue of that from their name or maybe their dress or whatever it is. And whenever we have such a person applying, if she doesn’t say anything . . . and we don’t hire them . . . we’re going to get sued. . . [W]ithout that simple rule, tell us, we’re going to be in a real administrative rat mess getting sued left, right and center.” Abercrombie’s counsel agreed that this just about summed it up.

Conclusion

It is notoriously hard to infer from Supreme Court oral argument which way the Court will come down in its decision, but there was little in the argument to provide comfort to employers that the Court will affirm the Tenth Circuit’s decision. Watch this blog for coverage of the Court’s decision.

For more information regarding this topic, please contact the authors or your favorite Seyfarth attorney.

ADA, FMLA and Medical Marijuana: How Do They Mix?

Posted in Workplace Policies and Processes

By: Lawrence P. Postol

Almost a majority of the states now allow medical marijuana, so questions are starting to pop up about how the use of medical marijuana affects an employee’s rights (and an employer’s responses) under other laws, and in particular, the Family Medical Leave Act (“FMLA”) and the Americans With Disabilities Act (“ADA”).

The FMLA allows qualified employees up to 12 weeks of unpaid leave for their own health condition or to care for a qualifying family member.  The ADA prohibits employers from discriminating against those who are disabled, and those associated with a disabled person. In addition, the ADA requires employers to provide reasonable accommodations to the disabled employee so the employee can perform the essential duties of their job.

While these two laws give employees certain rights, remember under federal law marijuana use remains illegal throughout the United States, even in those states where its use is legal under state law.

FMLA Quandary

So what if I am taking marijuana for a medical condition in a state where under state law my use is legal. What rights do I have under the FMLA and the ADA? Under the FMLA, leave is allowed for absences due to treatment of any serious medical condition, which includes essentially any chronic medical condition. The definition of a serious medical condition also includes any condition which incapacitates a person from work for over 3 consecutive days if they also need to see the medical provider twice for treatment, e.g., a bad cold. In other words, if I meet those qualifications, I can likely obtain FMLA leave. The fact that I might be using medical marijuana during my FMLA time off is irrelevant. Indeed, if my condition requires me to take time off from work to use medical marijuana, that time off would also be covered by the FMLA.

One can only imagine the possibilities that arise from this set of facts. Let’s say I have depression, and my psychiatrist has prescribed me to use medical marijuana as a treatment in a state where it is legal to do so. If the doctor directs that I use medical marijuana in the afternoon, say at 1:00 p.m., then I could take half the day off (unpaid of course) as FMLA time off. Now someone will try to be clever and say, what if he only wanted to take two hours off to light up, could that employee then return to work at 3:00 p.m.? Not likely. The employee would likely be impaired and an employer does not have to allow an impaired employee to work. Indeed, the employer could require a fitness for duty examination before taking the employee back to work.

What if the employer has a “zero tolerance” drug free workplace policy? Does the employer have to take the employee back when he/she tests positive for marijuana use after an FMLA covered absence to smoke marijuana as a medical treatment? Generally, an employer can enforce its drug-free workplace against off duty marijuana use, because marijuana use is still illegal under federal law. In other words, even if the employee is not high or impaired, if he/she tests positive for recent marijuana use, the employer likely could terminate the employee for failing to comply with that policy.

However, the employer’s actions would not be risk free. The employee could argue that the job termination was in retaliation for his taking FMLA leave, or an attempt to interfere with his/her use of FMLA leave. If a judge or jury believed that was the employer’s true motivation, those actions (interference and retaliation) are illegal under the FMLA, and the employee could be awarded damages, attorney fees, and reinstatement.

ADA – Drug Use Can’t Really Be Covered As A Disability – Can It???

And what about the ADA and marijuana use? Well the ADA provides that a person currently using illegal drugs is not a qualified individual with a disability and thus is not protected by the ADA. In addition, testing for illegal drug use is not considered a medical examination, so the ADA does not restrict when an employer can test for the use of illegal drugs. However, a question does arise when the state law allows the use of medical marijuana. Under the ADA, illegal drug use does NOT include use of drugs “taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provision of Federal law.” So does that exclusion include the use of medical marijuana when prescribed by a licensed health care professional, i.e., when a doctor prescribes medical marijuana when he is allowed to under his/her state law?

The reading of the ADA wording above — at first glance — would seem to indicate the answer is yes, that if a doctor prescribed the marijuana use, then it is excluded from the definition of illegal drug use. However, the word “other” makes the answer less clear, since it appears that Congress assumed that any prescription for a drug would also be legal under the Controlled Substances Act. While medical marijuana can be prescribed under some state laws, it is still probably illegal to do so under the Controlled Substances Act. When Congress enacted the ADA in 1990, no one had heard of medical marijuana, or at least Congress clearly was not thinking of it. Thus, Congress’ intent is not exactly crystal clear.

So, we reach the classis lawyer answer – it’s depends! What we’re left with is — at least the possibility — that a medical marijuana user whose use is legal under state law, and is prescribed by a medical provider, might not lose his ADA protection. If that is so, and the medical marijuana use is to treat an ADA covered disability (which, by definition, includes most chronic conditions), then that opens lots of possibilities. For example, the ADA requires as a possible accommodation that employer policies be modified or exceptions allowed. Would that include an employer’s drug free workplace policy? Probably not, since the ADA explicitly states that employers can require that employees behave in conformity with the Drug-Free Workplace Act. However, the courts are only starting to deal with this can of worms, and it is not that far-fetched to realize that some court will find that the ADA gives some protection to medical marijuana users in states where the use is legal.

As if this is not complicated enough, many states have their own “mini” ADA and FMLA statutes, which largely copy the federal statues, but they are not always identical to the federal ADA and FMLA laws.  (For example, see the DOL’s link to State FMLA laws.)

It may well be that a state’s ADA or FMLA statute gives further protection to a medical marijuana user, since the state law may not refer to federal Control Substances Act.

Medical marijuana users should not jump for joy, because it is less than clear that they have any significant protection under the ADA or FMLA. Conversely, employers need to assess their risk before acting, because it might well be that the ADA and FMLA do extend some protection to medical marijuana users.

If you have questions about this topic, please contact the author, or your favorite Seyfarth Attorney.

DOT Partially Extends Compliance Date for HazCom and Labeling of Lithium Cells and Batteries

Posted in Environmental, Safety, & Toxic Tort

By Ilana R. Morady and Craig B. Simonsen

shutterstock_30524071On August 6, 2014, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule modifying the requirements governing the transportation of lithium cells and batteries. 79 Fed. Reg. 46012.

The final rule revised hazard communication and packaging provisions for lithium batteries to harmonize the Hazardous Materials Regulations with applicable provisions of the United Nations Model Regulations, the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Maritime Dangerous Goods Code. The August 6, 2014 final rule had set a mandatory compliance date of February 6, 2015 for shippers to incorporate the new requirements into standard operating procedures and to complete training of affected personnel.

However, several retail and industry-related associations submitted a joint request for an extension of six months to the current mandatory compliance date. The request contended that the six month period adopted in the final rule did not provide sufficient time to comply with the new requirements and has proven extremely challenging for the retail industry to implement — in particular for surface transportation. The requestors noted that “generally, the new regulations require that domestic ground shipments of products with lithium batteries adhere to shipping standards previously only required for international air and sea transportation.” It was also noted that tens of thousands of consumer products may be impacted by the rule.

In this PHMSA notice, the Agency has partially extended the compliance date to August 7, 2015. 80 Fed. Reg. 9218 (February 20, 2015). In an important compliance distinction, PHMSA is maintaining the February 6, 2015 effective date for offering, acceptance, and transportation by aircraft. This extension, therefore, does not apply to transportation by aircraft. Otherwise, in response to commenters’ requests PHMSA is extending the mandatory compliance date for the lithium cells and batteries final rule published on August 6, 2014, until August 7, 2015 for all modes other than transportation by aircraft, to allow additional time to implement the requirements of the rule.

Upcoming 2-Part Webinar – Layoffs Without Liability: Advanced Strategies for Reducing Headcount

Posted in Uncategorized

Just a reminder that Seyfarth Shaw’s Energy Employment Law Group will be presenting a timely and interesting 2-Part webinar series on February 25th from 1 pm CT to 2 pm CT and March 4th from 1 pm CT to 2 pm CT. For further information, please see the event information below.

With oil prices having dropped dramatically, many energy companies are planning large-scale layoffs for the near-term. Seyfarth’s Energy Employment Law Group and RIF Best Practices Team will answer the tough questions employers face when planning group layoffs. This two-part webinar is intended for in-house counsel, HR professionals, and business professionals.

Day 1 – February 25, 2015 (Part I)

  • Considering alternatives to RIFs
  • Bullet-proofing the RIF process and selection criteria
  • Avoiding disparate impact claims

Day 2 – March 4, 2015 (Part II)

  • Minimizing WARN exposure
  • Developing enforceable severance agreements
  • “ERISA-fying” severance activity

There is no cost to attend this program, however, registration is required. You may Register Here

Wait…What Did He Say? (Or, What To Do When Your Employee’s Tweet Goes Viral)

Posted in Social Media, Workplace Policies and Processes

By: Erin Dougherty Foley

Picture this. You arrive at work only to be met by the employee who always seems to know everything about all that’s going on and that person hands you a copy of the “tweet” that another employee posted right before arriving at work this morning. The tweet reads: “Whoa, just ran someone over on my way into the office. Hope he’s OK.”

A few minutes later your local police department calls and asks to interview the employee. A few minutes after that—the President of your company storms in and says he’s gotten several calls from suppliers who heard about the incident and are demanding that something be done about it.

What to do? What to do?   First. Investigate.

What not to do?   Panic.

You call the employee in—and the employee sheepishly tells you that the tweet was a joke and that he had actually taken the train to work that day, and did not drive. Now what?

This actually happened at the end of last year. A British company learned that its employee had sent a fake tweet similar to the one above and fired him.

Some called the action excessive. Others felt that it was appropriate given the poor judgment of the employee (not to mention the fact that the tweet went viral and was retweeted over 150 times).

But let’s break this down a little bit and identify some things to consider in the event something similar happens (heaven forbid!).

  • Did it happen? Confirm with the local law enforcement as to whether an accident occurred. If your employee is lying to you – well that’s a significant factor to consider.
  • What did the employee say? Or rather, what was the subject of the tweet (or the blog post, or the Facebook Post, or the Instagram Picture, etc.)? Did the employee say something that otherwise violates some other company policy? (Did he publish a trade secret? Did he communicate financial information in violation of SEC rules? Did he say something harassing or discriminatory?). If yes to any of these, then there might be cause to discipline the employee (yes, up to and including termination).
  • Wait! Did the employee say something that might be considered “protected concerted activity?” (See our earlier blog post about what that means.)  If yes: call your legal department (or your favorite Seyfarth lawyer). As we’ve blogged about before, discipline for social media conduct is very high on the NLRB’s radar – perhaps better to fly under that radar for the time being.

If your hypothetical employee has not been self-eliminated yet – ask a couple of more questions:

  • Who is the employee? In other words, what role does this employee play within your organization? Does the employee regularly engage in social media as part of his or her job duties?
  • Did the employee identify herself as your employee in the social media account she uses? (Remember Justine Sacco, the media representative who tweeted an offensive statement before leaving for South African and was promptly sacked shortly after landing in South Africa?) As one article put it: “Her whole job revolved around communicating with reporters—which made her Twitter comment about Africa all the more shocking.”)

It’s appropriate to consider what role the employee plays within the organization when making any disciplinary decision. If it’s an employee who “should have known better,” it’s OK to factor that into your decision.

It’s probably not appropriate to consider the opinions of the media or general public (they always want to burn the witch don’t they?). It’s a closer call when it comes to your clients or customers; should it be a factor–sure, but probably shouldn’t be the only factor.

OK, let’s return to the scene of the crime – hold on – there was no crime. Remember, our hypothetical crime did not happen; the employee claimed it was a joke. So, now what? Well, go back to the drawing board, or in this case, your policies and procedures. Do you have a Code of Conduct? Do you have a social media policy? Do either of those identify conduct that this employee violated? (See our first discussion points above).

Is there anything wrong with terminating someone for simply exercising bad judgment? No, provided that the decision is not otherwise motivated by some other discriminatory intent or in response to some other protected activity (i.e., not retaliatory – see our blog post on that topic). Each situation (like any other disciplinary scenario) has to be considered both in the context of the individual events as well as how the company has reacted to other employee misconduct. Consistency is a key factor in fending off otherwise messy employee litigation.

Was the decision to terminate the British employee excessive? That’s probably one best left to the court of public opinion.

If you have questions about this topic, please contact the author, who is also a member of Seyfarth’s Social Media Team, or your Seyfarth attorney.

Four Years To Sue On SOX Claim Withdrawn From OSHA

Posted in OSHA Compliance

By Christopher F. Robertson and Craig B. Simonsen

The Fourth Circuit Court of Appeals recently ruled that a Sarbanes-Oxley Act (SOX) claim initially timely filed with OSHA and then withdrawn falls within 28 U.S.C. § 1658(a), the “catch-all limitations period,” which provides a four year limitations period.  Jones v. SouthPeak Interactive Corp. of Del., No. 13-2399 (4th Cir., 1/26/15).

In this case, SouthPeak Interactive Corp. (SouthPeak), a video game publishing company, fired its chief financial officer after she raised concerns about an alleged “misstatement” on one of the company’s filings with the Securities and Exchange Commission (SEC).  At trial, the jury found that the company and two of its senior officers violated the anti-retaliation provisions of SOX, and the district court awarded the chief financial officer more than half a million dollars in back pay and emotional distress damages.

In reaching the merits of the claim, the district court rejected SouthPeak’s argument that a two-year limitations period for private actions that involve “a claim of fraud” in violation of federal securities laws applied to complaints that have been timely filed with OSHA, but then withdrawn under the so-called “kickout” provision of SOX.  SOX’s kickout provision allows a claimant to withdraw an unresolved complaint from OSHA’s administrative process as a matter of right after 180 days.  In the SouthPeak case, the plaintiff timely filed the claim with OSHA, but then withdrew her claim and did not file in the district court until almost three years after her termination and over two years after withdrawal.

The Appellate Court found that the plaintiff’s SOX retaliation claim was subject to 28 U.S.C. § 1658(a), the catch-all limitations period, and because the plaintiff “brought her suit within that section’s four-year window, her claim is not barred.”

The court also rejected SouthPeak’s argument that emotional distress damages aren’t available on successful SOX retaliation claims.  The Fourth Circuit noted that the statute expressly entitles a prevailing plaintiff to receive “all relief necessary to make [her] whole,” citing to 18 U.S.C. § 1514A(c)(1), which states that “an employee prevailing in any action under [the Act] shall be entitled to all relief necessary to make the employee whole.”  Two federal Circuit Courts as well as the Administrative Review Board of the Department of Labor had previously concluded that emotional distress damages are available. See Halliburton, Inc. v. Administrative Review Board, 771 F.3d 254 (5th Cir. 2014), and Lockheed Martin Corp. v. ARB, 717 F.3d 1121 (10th Cir. 2013); Kalkunte v. DVI Financial Svs., Inc., 2004-SOX-056, ARB Case Nos. 05-139 & 05-140 at * 15 (Feb. 27, 2009) (upholding an ALJ’s award of compensatory damages under SOX for “pain, suffering, mental anguish . . . and humiliation.”); Brown v. Lockheed Martin Corp., 2008-SOX-0049 (Jan. 15, 2010) (awarding complainant $75,000 in compensatory damages under SOX for depression and loss of self-esteem).

It important to note that the plaintiff here did file an administrative complaint within the time periods provided under SOX, and then withdrew the administrative complaint after 180 days, as permitted by SOX.  Nothing in the Fourth Circuit’s decision obviates the need for a plaintiff to initially file with OSHA within 180 days.  However, once the complaint is withdrawn, the Fourth Circuit has concluded that there is no immediate timeframe within which the claim must then be filed in federal court as long as it is filed within four years after the claim accrues.

Canadian Immigration – Navigating an Increasingly Strict Compliance Regime

Posted in Immigration

By: Pavan Dhillon

Canada, much like the United States, has adopted increasingly protectionist immigration policies that are intended to strengthen the Canadian economy by restricting both temporary resident and permanent residency applications. Employment and Social Development Canada (ESDC), Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA) administer and adjudicate Canadian Immigration related applications and are responsible for undertaking enforcement action against non-compliant employers and individuals.

A major difference between United States and Canada’s Immigration reform efforts, is that Canadian agencies can adopt fundamental policy changes through Ministerial instructions.  Pursuant to Section 87.3 of the Immigration and Refugee Protection Act (IRPA), the Minister  can introduce sweeping reforms of immigration laws that affects “processing of applications” including establishing categories of applications and conditions that must be met. The Harper Government has relied heavily on this provision to fundamentally alter the Canadian immigration landscape. In particular, the liberal use of the ministerial instructions allow the government to use enormous discretion and can to a large degree bypass the checks and balances built into the democratic system. For instance, the ministerial instructions were used to institute a moratorium on parental sponsorships for a two year period.  The options to permanent residency in Canada is increasingly narrowing with the introduction of various ministerial instructions but the ministerial instructions have also been used liberally to implement a strict employer compliance regime.

In addition to outlining immigration related general offences and penalties, Canada has recently implemented significant compliance directives including increased inspections and abuse detection measures, increased information sharing between government agencies and increased enforcement measures including site visits and compliance reviews.

With heightened compliance initiatives, Citizenship and Immigration Canada has also provided unequivocal guidance affecting Human Resources (“HR”) professionals who may be at a risk of engaging in the unauthorized practice of providing immigration advice to their employees. The directive is also aimed to provide similar guidance to other professionals who may facilitate an immigration application such as educational agents, adoption agencies and live-in caregivers’ agents.

Specifically, pursuant to Section 91 of IRPA, only the following persons are permitted to knowingly, directly or indirectly, represent or advise a person for consideration – or offer to do so – in connection with Canadian immigration applications or proceedings under IRPA:

  • A lawyer who is a member in good standing of a law society of a province or
  • A notary who is a member in good standing of the Chambre des notaires du Québec;
  • Any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
  • A member in good standing of a body designated the IRPA regulations (ie. Immigration Consultants)

Any other individuals providing representation or advice may face harsh penalties for unauthorized representation, which is considered to be an immigration offence.  Pursuant to Section 91(9) of IRPA, unauthorized representatives may be liable, on conviction on indictment, to a fine to a fine of not more than $100,000 or to imprisonment for a term of not more than two years, or to both; or on summary conviction, to a fine of not more than $20,000 or to imprisonment for a term of not more than six months, or to both.

Granted these harsh penalties will generally be reserved for those who engage in fraudulent activity, but there are nevertheless repercussions for HR professionals. CIC provided the following directive limiting the role of HR professionals in order to provide additional guidance for those stakeholders legitimately involved in an immigration application.  Specifically, HR professionals cannot:

  • Explain and/or advise an employee about his or her immigration options. This would include permanent residency and temporary resident applications (such as work permits and temporary resident visas) but, strictly interpreted, may also extend to business visitor applications
  • Guide an employee on how to select the best immigration stream
  • Complete and/or submit immigration forms on an employee’s behalf
  • Communicate with CIC and the CBSA on the employee’s behalf (except to provide ancillary translation services regarding an employee’s written or spoken submissions)
  • Represent an employee in an immigration application or proceeding
  • Advertise that the HR representative can provide immigration advice for consideration
  • Complete applications forms, such as work permits and visa applications, on behalf of workers recruited.

HR professionals can however perform the following limited tasks:

  • Direct an employee to the CIC website to find information on immigration programs, application forms, or authorized immigration representatives
  • Provide ancillary services such as  translation, travel arrangements and couriers
  • Advise international students on course selection or registration
  • Conduct job interviews (as well as conduct recruitment efforts)
  • Complete Labour Market Impact Assessment (LMIA) application forms on behalf of the employer

HR Professionals engaging in these prohibited activities are exposing not only their companies and employees but also themselves to liability and risk. licensed Canadian immigration attorneys or certified immigration consultants should be consulted prior to advising any employee about his or her immigration options.

If you have further questions regarding immigration, generally or Canadian laws, specifically, please contact the author, a member of Seyfarth’s Immigration Department or your Seyfarth attorney.

Federal Contractors Should Be Concerned About The OFCCP’s NPRM Revising its Sex Discrimination Guidelines

Posted in Workplace Policies and Processes

By: Paul KehoeMeredith  C.  BaileyLawrence Z. Lorber and Annette Tyman

On January 28, 2015, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) announced a Notice of Proposed Rulemaking (“NPRM”) to update its Sex Discrimination Guidelines (the “Guidelines”).  The NPRM will be published in the Federal Register on January 30, 2015, followed by a sixty-day comment period.

The proposed regulations modify the requirements for federal contractors to fulfill their obligations under Executive Order 11246.  The OFCCP had not substantively updated the Guidelines since 1970 despite forty-five years of changes in discrimination laws through legislation and court decisions.  While the proposed regulations seek to update requirements in accordance with “existing law and policy,” many of the provisions go beyond the parameters of current statutory and other legal obligations, including:

  • The adoption of the “implicit bias” theory of discrimination because “[r]esearch clearly demonstrates that widely held social attitudes and biases can lead to discriminatory decisions, even where there is no formal sex-based (or race-based) policy or practice in place” despite the Supreme Court’s explicit rejection of the implicit bias theory in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553-54;
  • A new requirement that aligns with the EEOC’s controversial guidance that contractors must provide light duty to all pregnant employees regardless of whether an impairment substantially limits a major life activity even though the issue is pending before the Supreme Court in Young v. UPS;
  • A new requirement that contractors allow transgendered individuals to use the restroom of his or her choice (despite Congress’s decision not to enact Employment Nondiscrimination Act);
  • A prohibition on contractors imposing a shorter maximum amount of pregnancy leave as compared to the maximum time off allowed for other types of medical or short-term disability leave;
  • More robust protections regarding compensation discrimination (despite Congress’s decision not to enact the Paycheck Fairness Act), in addition to the current proposals regarding a new compensation form (link),  pending regulation regarding transparency and non-retaliation (link) and the new scheduling letter requiring substantial submission of compensation data.

This Administration continues to aggressively implement its agenda via Executive Orders and regulations in the face of its deadlock with Congress.  Contractors should take special note of these proposed regulations since aspects of these regulations would create substantial additional burdens.  Importantly, while the Guidelines that have been in place since 1970 operated as guidance to contractors, the proposed regulations, if finalized in their current form, would be binding on federal contractors and subcontractors.   There is a significant legal question as to whether OFCCP has the authority to transform “guidance” to the status of “regulation” and this question may fuel legal challenges.  There is also a legal question as to whether the agency has the authority to create requirements for federal contractors that may be at odds with the state of the law as defined by some courts.  Contractors should consider submitting comments to the proposed regulations to ensure that their views are heard during the rulemaking process. Comments must be received by March 31, 2015.

Another Message To The EEOC On Wellness Plans: Targeting Incentives Is Inconsistent With The Affordable Care Act

Posted in EEOC

By Paul H. Kehoe

On January 29, 2015, the U.S. Senate Committee on Health, Education, Labor & Pensions held a hearing on employer wellness plans. While bipartisan sentiment may be difficult to find in Washington, it is clear that both Republican and Democrat Senators view wellness plans favorably, recognize the crucial role that wellness plans play in lowering health care costs, and are concerned with the Equal Employment Opportunity Commission’s litigation challenging wellness plans, especially in the absence of an articulated policy by the EEOC.

The issue is fairly straightforward. Under the Affordable Care Act (“ACA”), and its implementing regulations issued by the Departments of Labor, Treasury and Health and Human Services, employers may offer financial incentives to employees up to 30% of their health care premiums for participating in and/or reaching certain health outcomes in a wellness plan (and up to 50% for smoking cessation programs). Read more here. Under the Americans With Disabilities Act (“ADA”), medical examinations and/inquiries (including biometric screening) are not permitted unless such inquiries are either job related and consistent with business necessity or voluntary.

Late last year, the EEOC filed litigation against Honeywell International seeking a preliminary injunction to stop it from implementing its wellness plan, which required employees to undergo biometric testing. Employees who chose not to participate forfeited a contribution to a health savings account of up to $1,500, were assessed a $500 surcharge, and were potentially subjected to a $1,000 nicotine surcharge. Ultimately, the EEOC’s theory was that Honeywell’s incentives offered through its wellness program made participation non-voluntary under the ADA even if the incentives complied with the ACA and its implementing regulations.  The EEOC lost the first round of motions in the case (here is our post on that litigation). Given the seemingly inconsistent position between the ACA, regulations issued by three Cabinet-level agencies, and the EEOC’s litigation position, some employers have limited their wellness programs and related incentives, or have even chosen not to offer them.

From both sides of the aisle, the tenor of the hearing was clear – Congress permitted incentives for wellness plans that now the EEOC is litigating against. Senator Alexander (R-TN) remarked (link here) that “EEOC is sending a confusing message to employers – reliance on Obamacare’s authorization of wellness programs does not mean you won’t be sued.” Ranking Member Murray (D-WA) said “[I]t has been exciting to see businesses nationwide to respond to incentives included in the [ACA].” In addition, Sen. Mikulski (D-MD) noted that she was “very frustrated to hear that we are now arguing over the EEOC giving regs and rules… [G]iven the uncertainty of the law, the wellness programs are going to pull back.”

These sentiments follow a clear articulation by the White House on December 3, 2014 that the EEOC’s position “could be inconsistent with what we know about wellness programs and the fact that we know that wellness programs are good for both employers and employees.”

Implications For Employers

The Senate HELP Committee clearly expects the EEOC to issue regulations on the issue. Indeed, such regulations have been included on the EEOC’s most recent Regulatory Agenda. However, all stakeholders like to ask for clarity unless the clarity they receive is not the clarity that they want. As such, when proposed regulations are published, it will be critical for employers interested in offering wellness plans to consider submitting comments to reflect their support of wellness plan incentives up to the limits authorized by Congress. We will keep you updated on any additional developments regarding wellness plans and forthcoming EEOC proposed regulations.

Readers can also find this post on our EEOC Countdown blog here.

Governor Rauner Rescinds Increase In Illinois Contractors’ Minimum Wage

Posted in Workplace Policies and Processes

By: Marc R. Jacobs

As we previously reported, during his final hours in office, former Governor Pat Quinn issued an executive order establishing a minimum wage of $10,00 per hour for all Illinois state government contracts. On January 16, Governor Bruce Rauner issued Executive Order 15-11, which rescinded the increase in the minimum wage and several other executive orders issued by former Governor Quinn during his final days in office.  The text of EO 15-11 is available at  https://www.illinois.gov/Government/ExecOrders/Pages/2015_7.aspx.  In Executive Order 15-11, Governor Rauner stated that the rescinded orders “were not wholly motivated by serving the public interest.

Hence, the minimum wage for Illinois government contractors remains the same as that applicable to Illinois employers generally (currently $8.25 per hour).