The Agricultural Guestworker Act Gaining Ground

In October, the Agricultural Guestworker Act of 2017 (House Resolution 4092), introduced by U.S. Rep. John Goodlatte (R-Va.), was passed by the House Judiciary Committee and sent to the full House. Michigan’s lone representative on the committee, Rep. John Conyers (D), voted against it.

John Kran, national lobbyist with Michigan Farm Bureau, commented that “any farmer who’s dealt with this issue will tell you that the availability of domestic workers continues to decrease. This bill not only deals with the seasonal workforce, but the need for year-round ag workers.” The need for such legislation is clear, at least to farmers. Currently, the only way farmers can have the peace of mind about a legal workforce is to go through the H-2A program, which is so notorious for burdensome paperwork, long lead times and woefully complicated processes that Michigan Farm Bureau established the Great Lakes Agricultural Labor Services (GLALS) to help farmers successfully navigate the process.

Goodlatte’s legislation would create a new H program, called H-2C, under which a new guest-worker program would be established, allowing farmers to hire workers for up to 18 months for seasonal labor and 36 months for year-round labor, such as are needed on dairy farms, other livestock operations, and food processing, including meat packing. “Michigan dairies have a huge need for the longer visa, and poultry and hog operations have trouble finding people too,” Kran said. “The bill isn’t perfect, but it’s a good place to start.” Among the things Farm Bureau would like to see changed in the bill is a mandatory limit on the number of workers allowed in. The bill proposes that the number be capped at 450,000 per year, with an ‘escalator’ for additional need.

 

© 2017 Varnum LLP
This post was written by Aaron M. Phelps of Varnum LLP.
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Illinois Employers Face A Recent Rash of Class Action Lawsuits Filed Under State Biometric Information Privacy Law

Illinois enacted its Biometric Information Privacy Act (“BIPA”) in 2008 to regulate, among other things, employer collection and use of employee biometric information.  Biometrics is defined as the measurement and analysis of physical and behavioral characteristics.  This analysis produces biometric identifiers that include things like fingerprints, iris or face scans, and voiceprints, all of which can be used in a variety of ways, including for security, timekeeping, and employer wellness programs.

Illinois is not the only state with a biometrics privacy law on its books, however, its version is considered the nation’s most stringent.  BIPA requires a business that collects and uses biometric data to protect the data in the same manner it protects other sensitive or confidential information; to establish data retention and destruction procedures, including temporal limitations of three years; to publish policies outlining its biometric data collection and use procedures; and to obtain prior, informed consent from any individuals from whom it plans to obtain and use biometric data.   The statute also requires  businesses to notify employees in the event of a data breach.

Protection of biometric data is viewed as critical because, unlike passwords comprised of letters, numbers, or typographical characters, biometric data is unique and cannot be replaced or updated in the event of a breach.  Technology now allows biometric data to be captured surreptitiously, such as recording a voice over the phone, or face mapping individuals in a crowd or through photographs, increasing the risk for its theft or unauthorized or at least, unknown, use.  In fact, these more furtive methods of collecting and using biometric data is what led to the filing of five BIPA class action lawsuits in 2015 – four against Facebook, and one against online photo website Shutterfly – that alleged these companies used facial recognition software to analyze online posts, but did not comply with BIPA’s consent or other procedural requirements.  These first lawsuits brought attention to the private right of action authorized under BIPA, which provides that any “aggrieved” person may sue and recover $1,000 for each negligent violation and $5,000 for each intentional or reckless violation, or, in both circumstances, actual damages if greater than the statutory damages.  Prevailing parties may also recover their attorneys’ fees and costs.

The plaintiffs’ employment bar recently has gotten seriously into the BIPA class action game; since August 2017, approximately 30 lawsuits have been filed in Cook County, Illinois (where Chicago is), alone.  These putative class actions have been filed against employers in many industries including gas stations, restaurants, and retail, and typically involve the employer’s use of fingerprint operated time clocks.  The cases allege that the defendant employers failed to obtain proper informed consent or fail to maintain and inform employees about policies on the company’s use, storage, and destruction of biometric data.  Many of these lawsuits also allege the employer companies have improperly shared employee biometric data with third-party time clock vendors, and some even name the vendor as a defendant.

In addition to the obvious cost of class action litigation, these suits present additional legal challenges because many aspects of BIPA remain untested.  For example, the statutory term “aggrieved” person leaves open the question whether a plaintiff must be able to prove actual harm in order to recover.  The U.S. District Court for the Northern District of Illinois and U.S. District Court for the Southern District of New York both have dismissed BIPA suits for lack of standing where the plaintiffs did not allege actual harm.  The latter case, Santana v. Take-Two Interactive Software, is currently before the United States Court of Appeals for the Second Circuit, which heard oral argument in October 2017, but has not yet issued its ruling.   Other aspects of BIPA also remain in flux – such as whether facial recognition through photography is biometric data, as defined under the statute, and what forms of consent are compliant.  On the other side, defendants are challenging the constitutionality of the damages provisions, arguing that their potentially disproportionate nature to any actual harm violates due process.  As these issues are flushed out under BIPA, they are certain to affect other states who have already enacted, or may seek to enact, laws regarding use of biometric data.

This post was written by Daniel B. Pasternak of Squire Patton Boggs (US) LLP., © Copyright 2017
For more Labor & Employment legal analysis go to The National Law Review 

Haitian TPS Program Will End in July 2019

Six months after then-Secretary of Homeland Security John Kelly announced the extension of Haitian Temporary Protected Status (TPS) for only six months (until January 2018, when he would reevaluate the determination), Acting Secretary of Homeland Security Elaine Duke announced her decision to terminate the designation with a delayed effective date of 18 months.  She said this would allow for an orderly transition before the designation terminates on July 22, 2019.

Haitians with TPS will be required to reapply for Employment Authorization Documents in order to legally work in the United States until the end of the period. Further details about this termination for TPS will appear in a Federal Register notice. Termination of TPS will affect not only some 50,000-60,000 Haitians who are in the U.S. on TPS, but also their families, including approximately 30,000 U.S.-citizen children born in the U.S. to Haitians in TPS status since 2010 (when TPS was conferred after the earthquake that killed thousands on the island).

A number of advocacy groups, members of Congress, and the U.S. Chamber of Commerce had been urging a further extension based on ongoing problems from the devastating 2010 earthquake and Haiti’s limited capacity to reabsorb these nationals and family members.  They also highlighted that termination will create labor dislocations in certain construction, food processing, hospitality, and healthcare industries that have relied on Haitian TPS workers since 2010. Florida and Texas may be particularly hard hit as they continue to recover from Hurricanes Harvey and Irma.

This post was written by Michael H. Neifach of Jackson Lewis P.C. © 2017
For more Immigration legal analysis go to The National Law Review 

Yoga and Massage Therapist Fired for Being “Too Cute” Sees Gender Discrimination Revived on Grounds of Unjustified Spousal Jealousy

A New York appeals court recently ruled in Edwards v. Nicolai (153 A.D.3d 440 (N.Y. App. Div. 1st Dep’t 2017)) that an employment termination motivated by the sexual jealousy of an employer’s spouse may support a claim for gender discrimination under the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”).

Defendants Charles Nicolai and his wife Stephanie Adams – a former Playboy model – were co-owners of a chiropractic center located in New York City. In 2011, Nicolai hired plaintiff Dilek Edwards, a female yoga and massage therapist, and was her direct supervisor. Edwards’s complaint alleged that during the course of her employment, her relationship with Nicolai was “purely professional” and that Nicolai “regularly praised [her] work performance.”

However, in June 2013, Nicolai purportedly told Edwards “that his wife might become jealous of [her], because [Edwards] was too cute.” Several months later, Adams sent plaintiff a text message saying, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” A few hours later, Edwards allegedly received an email from Nicolai stating, “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.” One day later, Adams filed an allegedly false complaint with the New York City Police Department claiming that Edwards placed “threatening” phone calls to Adams which caused Adams to change the locks at her home and business. Edwards’s complaint alleges that she has “no idea what sparked . . . Adams’ [sic] suspicions.”

Edwards’s NYSHRL and NYCHRL gender discrimination claims were dismissed at the trial court level. However, that decision was overturned on appeal, with the court holding that “adverse employment actions motivated by sexual attraction are gender-based, and therefore, constitute unlawful gender discrimination.” The court explained that while Edwards does not allege that she was subjected to sexual harassment, it can be inferred that Nicolai was motivated to terminate Edwards “by his desire to appease his wife’s unjustified jealousy.” Further, it can also be inferred that Adams was motivated to terminate Edwards based on Adams’s own jealousy. Accordingly, the court found it plausible that each defendant’s motivation to terminate Adams was sexual in nature and therefore unlawful.

In reaching its decision the court observed that, “while it is not necessarily unlawful for an employer to terminate an at-will employee at the urging of the employer’s spouse,” a plaintiff may find relief for such a discharge if the spouse requested the termination for unlawful, gender-related reasons. Here, assuming Edwards’s allegations are true, her termination was unlawful not because Adams asked Nicolai to fire Edwards, but because she did so for no other reason than her belief that Nicolai was sexually attracted to Edwards.

Laura Doyle contributed to this post.

This post was written by Jonathan Sokolowski of Sheppard Mullin Richter & Hampton LLP., Copyright © 2017
For more Labor & Employment legal analysis, go to The National Law Review

Survey Says: Employees Still Value Validation Over Compensation

For decades, survey after survey has shown that recognition, respect, etc., are far more important to employees than compensation. A new survey from Globoforce’s WorkHuman Research Institute confirms that the trend continues. One of the best things about this, in my opinion, is that every manager can impact things like recognition in the workplace in a positive way. In short, there are small things managers can do every day to improve their workplaces, employee morale and engagement.

On the union avoidance front this is key. In many cases, the catalyst for unionization of a workforce is mistreatment of employees by management (including lack of recognition on the job). This latest survey confirms the importance of maintaining positive employee relations. Accordingly, companies should consider ensuring union-free plans contain a strong component of positive employee relations training/planning.

This post was written by David J. Pryzbylski of BARNES & THORNBURG LLP., © 2017
For more Labor & Employment legal analysis, go to The National Law Review

Time to Think About Holiday Bonuses

Halloween has passed and we are now squarely approaching the holiday season. While this time of year brings many good things, it can also bring unwanted headaches for employers wanting to spread some “holiday cheer,” especially those who forget how bonuses may affect payment of overtime. So, while we recently discussed bonuses in general, now is a good time for a refresher on bonuses and overtime pay in the context of holiday payments.

First, don’t forget the general rule for non-exempt employees is that all compensation is to be included in the calculation of the “regular rate.” Bonuses must be included within the regular rate unless specifically excluded by law or regulation. Bonuses which do not qualify for exclusion from the regular rate must be totaled in with other earnings to determine the regular rate on which overtime is based. However, certain things are excluded from compensation used to calculate the regular rate.

The first of these is the traditional “Christmas bonus,” or more precisely, “sums paid as gifts; payment in the nature of gifts made at Christmas time or other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production or efficiency.” To not be included as compensation used for calculating the regular rate, the “bonus must actually be a gift or be in the nature of a gift.” The bonus cannot be measured by the hours worked, production or efficiency. Nor can it be so substantial that it can be assumed that employees consider it as part of wages for which they work. The bonus may, however, vary between employees based on length of service. Finally, it cannot be paid pursuant to some contract. Bottom line – true Christmas gifts or holiday bonuses do not have to be included in the regular rate for purposes of computing the regular rate.

The second, and more challenging, scenario is a bonus that while paid at year-end is not necessarily a true holiday gift. As we recently addressed, the question is whether such bonuses truly are discretionary. Again, the exclusion is narrow. To be excluded from computation of the regular rate, the “sum paid in recognition of services performed in a given period” (i.e. bonus) must fall in one of two categories. One, the fact that the payment is to be made and the amount to be paid must be in the sole discretion of the employer. Further, the decision must be made at or near the end of the period in which payment is to be made and not be based on any promise, contract or agreement which causes the employee to regularly expect such payments. Or two, the compensation may be excluded from the regular rate if the payments are made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift or savings plan.

Employers looking to spread holiday cheer in the form of end-of-the-year bonuses must therefore address the primary question of whether the bonus truly is discretionary. In making this determination, consider the following facts that may destroy the discretionary aspect of a bonus:

(1) If the employer promises in advance to pay a bonus

(2) If the amount of the bonus is conditioned on allocating a percentage of sales to the “bonus pool”

(3) If the bonus is promised at the time of hire

(4) If the bonus is to induce employees to work more efficiently or to remain with the employer

As examples, attendance bonuses, individual or group production bonuses, bonuses for quantity or quality of work, or retention bonuses are not discretionary and must be included in the regular rate.

So, celebrate the holidays and reward your employees, but be careful to consider whether bonuses must be included in computing the regular rate for non-exempt employees.

This post was written by Kevin E Hyde of Foley & Lardner LLP., © 2017
For more Labor & Employment legal analysis, go to The National Law Review

Right-to-Work Battle in Illinois Enters Cease Fire – For Now

Illinois is completely surrounded by right-to-work states that have laws making it unlawful for companies to require union dues as a condition of employment. Notwithstanding the recent trend of states enacting such laws, the Illinois legislature tried its best this year to block right-to-work legislation within its borders.

Earlier this year, the Illinois legislature passed a law that would prohibit local governments from enacting their own right-to-work laws after one Illinois municipality attempted to enact a right-to-work ordinance in 2015. Illinois Gov. Bruce Rauner vetoed the legislation – based on his belief that right-to-work laws promote business growth – and this week the legislature fell one vote short of overriding his veto. There are signals legislators may attempt to revive the legislation next year. Thus, this remains an issue for Illinois employers to watch.

This issue is not unique to Illinois; local governments in Kentucky enjoyed some success with their own right-to-work ordinances several years ago before the state enacted its own right-to-work law.

Right-to-work laws are permitted under Section 14(b) of the Taft-Hartley Act and make it unlawful for companies to require union dues as a condition of employment. In states where right-to-work laws are not enacted, most unionized employers have clauses in their labor agreements that require dues payments as a condition of employment – the clauses generally are known as “union seniority clauses.” At present, 28 states have right-to-work laws on the books. The National Right to Work Foundation maintains a current list.

This post was written by David J. Pryzbylski of BARNES & THORNBURG LLP., © 2017
For more Labor & Employment legal analysis, go to The National Law Review