As more US companies prepare to return to the office, whether on a hybrid schedule or otherwise, in addition to grappling with COVID testing protocols and vaccine mandates (read more here), is the reality of re-engaging with compliance matters that may have been on “hiatus” for the last year.

One time-sensitive topic that may have been overlooked is Form I-9, Employment Eligibility Verification compliance.

While U.S. Immigration and Customs Enforcement has allowed some flexibility for US employers over the course of the COVID-19 pandemic, the relaxed rules will no longer apply once employees are routinely and predictably in the office. Without this flexibility, employers must act quickly to (1) update I-9s completed during the pandemic pursuant to ICE’s flexible rules, and (2) put in place or refresh protocols for I-9 completion and maintenance in a workplace that is always changing with shifting post-pandemic norms.

The issuance of post-pandemic I-9 compliance is time sensitive and the failure to act timely will result in higher risk of fines during an investigation. For many employers, this will be a time-consuming and overwhelming task in light of the moving parts and other elements of office reopening. As a result, planning now to ensure I-9 compliance is an absolute necessity.

In this article, we provide an overview of I-9 requirements and ICE’s I-9 flexibility relating to COVID-19, and propose five steps that all employers should take in advance of office reopening.

Click here to continue reading this Article.

Original article published in Law360.

Special thanks to the authors, Melissa Allchin and Matthew Gorman.

Pressure is mounting on U.S. and multinational employers to require COVID-19 vaccines for employees, as the Delta variant spreads voraciously, spiking infections and hospitalizations across the country and forcing employers to once again shutter worksites or change their workplace safety protocols. But can (and should) employers mandate vaccination?

Vaccine mandates received strong support on Thursday, July 29 when President Biden announced that all civilian federal employees and onsite contractors either must be vaccinated or submit to regular testing, social distancing, mask requirements, and restrictions on travel. The same day, the U.S. Treasury Department released a policy statement directing state and local governments to use funds from the $350 billion American Rescue Plan to incentivize vaccines by offering $100 to individuals who get vaccinated.

Separately, more than 600 universities have announced mandates for students or employees. And state and local governments have joined in, with California and New York City announcing mandates this week for government employees and certain healthcare workers, and the federal Department of Veterans Affairs announcing that frontline VA health care employees must get vaccinated or face termination.

Large employers are joining the fray, with global technology companies, financial institutions, healthcare systems, retailers, transportation companies and media companies recently announcing that vaccination will be required for everyone in their workplaces.

So can private employers adopt mandatory vaccination policies? What follows is a framework for understanding whether such an approach is permissible both in and outside the US, as well as some of the key considerations for such policies.

Bottom line: in the US, private employers can legally mandate vaccines under federal law, subject to the legal considerations outlined below. State law, however, differs by jurisdiction, with some states authorizing vaccine mandates while at least one has banned them.  For illustrative purposes, we discuss California law in the framework below.

Continue Reading Mandating COVID-19 Vaccination? Before You Act, Consider These Key Issues For US and Multinational Employers

When world economies face challenges, employment litigation claims of all types arise. In this Quick Chat video, our Labor and Employment lawyers discuss the range of trending employment-related claims and cases and share what employers can do to best position themselves to manage impending litigation.

Click here to watch the video.

Review our brochure, COVID-19 Employment Litigation on the Rise – How We Can Help, to read more about the current landscape, access useful resources and learn how our seasoned litigators can help you achieve the best resolutions for your business goals.

Litigation is a reality for virtually every company, yet it is a topic that very few organizations want to think or talk about. Our Litigation Intelligence Tool (LIT) and the accompanying report, Litigation Intelligence: Ready for Anything? make the case for focusing on litigation preparedness — offering insights into key risks and providing practical, cost-conscious steps leaders can take to prepare for the inevitable dispute.

 

Our four-part Global Guided Tour webinar series is your passport to ensure that your organization is up to speed on the key labor and employment issues affecting business operations in Europe, the Americas, Asia Pacific, and the Middle East and Africa.

In each regional 60-minute webinar recording, our in-market presenters discuss the most recent political and economic developments and challenges impacting employers and share legal updates, practical tips and takeaways for companies to action now.

 

Use our Top Takeaways for Your Company to Action Now Checklist to help your organization’s leadership prioritize where to focus its attention and click the links below to watch all of the on-demand recordings applicable to your organization.

 

 

View our Global Guided Tour for US Multinational Employers highlight reel video for a recap of the series.

Missed a session or would like to share the program with your team? Click the links below to watch all of the on-demand recordings applicable to your organization.

Special thanks to guest contributors: Jeff Martino and Katelyn Sprague.

Baker McKenzie’s Labor and Employment, Trade Secrets and Antitrust lawyers explore the impact on employers of the severe limitations on post-employment noncompete restrictions outlined in President Biden’s Executive Order on Promoting Competition in the American Economy and the supporting Fact Sheet.

Click here to watch the video.

Special thanks to Jeffrey Martino and Bradford Newman for their contributions to this post.

On July 9, 2021, President Biden issued his Executive Order on Promoting Competition in the American Economy (EO) (Fact Sheet here) signaling support for severe limitation of post-employment noncompete restrictions–a move likely to add fuel to the fire of states passing laws to limit the use of post-employment noncompetes. The EO Fact Sheet states that the banning or limiting of noncompetes will “[m]ake it easier” for employees to “change jobs[.]” Though employers may balk, given Biden’s campaign promises and support for passage of the Protecting the Right to Organize (PRO) Act (see our prior blog here), employers should not be surprised.

The EO encourages the Chair of the Federal Trade Commission (FTC) to exercise the FTC’s statutory rulemaking authority to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” It is uncertain whether that rulemaking will entirely ban or just limit noncompete agreements; focus on restricting noncompetes for all workers or just those considered more vulnerable (such as low wage earners); restrict nonsolicit agreements along with noncompetes; or preempt state law.

The EO also encourages the Attorney General and the Chair of the FTC to consider revising the October 2016 Antitrust Guidance for Human Resource Professionals “to better protect workers from wage collusion” by (as the Fact Sheet explains) strengthening antitrust guidance to prevent the suppression of wages or reduction of benefits through employer collaboration and sharing of wage and benefit information. As we explained in a recent client alert, a push to scrutinize competition issues in labor markets was already in play, tracing back to the 2016 Antitrust Guidance, in which the Department of Justice and FTC alerted companies that “naked” wage-fixing and no-poaching agreements could be prosecuted criminally, and that employers competing to hire or retain the same employees are “competitors” from an antitrust perspective.

Continue Reading Goodbye to Employer Protections? Biden Issues Executive Order Encouraging Curtailing of Post-employment Noncompetes

A proposed bill in California seeks to protect workers against nondisclosure agreements and empower them to speak out about alleged acts of discrimination, including racism. Senate Bill 331, known as the Silenced No More Act, was introduced in February 2021 and seeks to expand protections against confidential settlements to cover all forms of harassment or discrimination under California law, including on the basis of race, ancestry, religion or gender identity. If passed, the law will impose greater restrictions on companies’ freedom to contract settlement and non-disparagement agreements.

New Obligations if SB 331 Passes

  1. SB 331 will expand the existing prohibition of provisions that prohibit discussing sexual harassment in the workplace to discussing any type of harassment (i.e., race, age, religious harassment). (See discussion of SB 820 below.)
  2. The law will prohibit non-disparagement agreements that prohibit the disclosure of information about unlawful acts in the workplace.
  3. The law also will create new obligations, such as the requirement to notify the employee that the employee has a right to consult an attorney regarding the agreement and giving the employee “a reasonable time period of not less than five business days” in which to do so.

Several Employer-Friendly Changes to Observe

  1. The law clarifies that including a general release or waiver of all claims in an agreement related to an employee’s separation from employment does not violate the statute.
  2. It verifies that the law does not prohibit a provision that precludes the disclosure of the amount paid in settlement of a claim.
  3. It confirms that employers may protect trade secrets, proprietary information, or confidential information that does not involve unlawful acts in the workplace.

Continue Reading #MeToo 2.0: New California Bill Proposes Greater Restrictions on Confidentiality and Non-Disparagement Agreements

Special thanks to our summer associate Brianna Miller for her contributions to this post.

In Trinity Services Group, Inc. v. NLRB, No. 20-1014 (June 1, 2021), the US Court of Appeals for the DC Circuit recently rejected the National Labor Relations Board’s (NLRB) attempt to prohibit employers from expressing opinions the NLRB considers baseless. In reversing the NLRB, the Court held that the National Labor Relations Act (the “Act”) only prohibits employer speech containing a threat of reprisal or the promise of benefits, and that expressions which are merely “views, arguments or opinions” are not unlawful.

No threat of reprisal or promise of benefits means the statement–even if not based in fact–is not illegal

The case arose when an employee discovered a mix-up regarding the amount of her accrued paid leave. When she raised the issue with her supervisor, he pinned the blame on the union. The NLRB and the Court both found there was no objective basis for blaming the union rather than the employer for the mix-up.

The Court examined the provisions in Section 8(a)(1) of the NLRA, which proscribes certain speech. Section 8(a)(1) makes it unlawful for an employer to “interfere with, restrain or coerce employees” in the rights guaranteed by the Act. The Court also considered the provisions in Section 8(c) which guarantees parties freedom of speech, specifically that “[t]he expression of any views, argument, or opinion…shall not constitute an unfair labor practice.” The Court sought to reconcile the two provisions, and holding that only speech containing a threat of reprisal or promise of benefits is prohibited by the NLRA, while Section 8(c) protects “any” view, argument or opinion. The Court held the statement the NLRB found illegal contained neither a threat of reprisal or the promise of benefit and thus was not illegal. Undeterred by the plain meaning of the word “any,” the NLRB requested the Court to create an exception under Section 8(c) for statements which are “patently false.” The Court rejected that request as contrary to the plain language of the section.

Continue Reading NLRB’S Attempt at Fact Checking Rejected

Ordinarily, courts defer to the National Labor Relations Board’s (NLRB) factual findings and its remedial orders given the Board’s broad discretion when fashioning a remedy. However, in the D.C. Circuit’s recent decision in RAV Truck & Trailer Repairs Inc. v. NLRB, 997 F.3d 314 (D.C. Cir. 2021), the Court refused to do so.

Sometimes being too persuasive can have a downside, as Peter Robb, former General Counsel of the NLRB can attest. Robb had convinced the NLRB to find an owner had illegally closed his business and had further persuaded the NLRB to order it reopened. Contrary to common practice, the Court refused to rubber stamp the NLRB’s factual findings or to defer to the remedy, stating that the NLRB’s order “does not purport to explain how restoration is even factually possible.” Instead, the Court gave the NLRB a second chance at finding the necessary evidence in the now closed record.

Continue Reading DC Circuit Court Reins in NLRB: No “Rubber Stamp” of NLRB’s Findings and Remedy

A second court of appeals has refused to adopt a National Labor Relations Board (NLRB) decision declaring an employee’s speech violated the National Labor Relations Act.  See Tecnocap, LLC v. NLRB, 2021 U.S. App. LEXIS 18080 (4th Cir., June 17, 2021). Similarly, in a decision issued earlier this month, the D.C. Circuit vacated an NLRB decision, finding instead it was not unlawful for an employer to make a false statement. See Trinity Servs. Grp. v. NLRB, 2021 U.S. App. LEXIS 16314 (D.C. Cir., June 1, 2021) (which we blogged about here). In Tecnocap, the Fourth Circuit deemed the NLRB’s decision out of bounds because in its view the employer’s speech “communicated accurate and lawful information,” and did not constitute unlawful “direct dealing” with its employees.

Continue Reading NLRB Loses Second Recent Speech Decision