Labor & Employment

Hours before it was set to expire, the EB-5 Regional Center Program received a temporary continuance with the final passage of the Continuing Resolution that provides funding to the federal government until December 11, 2015.  This continuance gives Congress additional time to discuss proposed reforms for the program.  The EB-5 Regional Center Program was set to expire on September 30.

Every business has new applicants applying for open jobs daily.  When you consider obtaining that consumer credit report and complying with the Fair Credit Reporting Act (FCRA),  DO NOT think about conserving paper by including multiple key points all in ONE DOCUMENT – that eco-thinking decision will put you in violation of the FCRA.

In April, Home Depot USA Inc. agreed to a $1.8M settlement to resolve a putative class action alleging violation of the FCRA.  Home Depot’s job application background-check form included the required disclosure statement, but also a release from all liabilities, and stated the repercussions for providing false and misleading information.  Based on the way the courts have been interpreting the FCRA, Home Depot was smart to settle the case and avoid going forward in the litigation.

On April 14, 2015, the long awaited rules governing union elections went into effect. These so-called ambush election rules were delayed since they were first proposed in 2011 due to a number of legal roadblocks. If your company is being organized under the new rules, everything you knew about the process has likely changed. In fact, these are the broadest sweeping changes in union elections in half a century.

The biggest change is the time between the union filing a petition with the National Labor Relations Board (NLRB) until the actual union election, so instead of 42 days it will now be as little as 11 days. Who benefits from this reduction? Many business groups argue that the reduction is to allow unions to gain the upper hand in winning union elections. The shortened time frame can allow unions to organize a workforce secretly for months and then spring an election on a company who has one week to respond to the union’s “ambush.”

Below are a few highlights of what employers can expect under the new rules:

Dealing with union organizing campaigns just became more difficult for employers. On April 14, 2015, the long anticipated National Labor Relations Board’s Rules governing union organizing campaigns and elections went into effect. These so-called “ambush” election rules will likely catch companies off guard when they are faced with a new union organizing campaign.  In fact,…

The General Counsel’s office of the NLRB issued a memo this week setting forth its position on a variety of different matters as to the new rules and regulations regarding the election process which will be effective April 14, 2015. These are the first major changes in the election process since the 1930’s and they will be significant. Most importantly, the timeline from the point of the filing of a petition to holding an election is greatly compressed. In theory, there could be an election conducted as soon as seventeen days after the petition is filed with the Agency. Indeed, the General Counsel’s office has indicated to the Regional Offices that they expect elections to proceed (either by stipulation or post hearing) in the seventeen day to thirty day time frame. The latter number reflecting those situations in which there is a hearing held and there needs to be a ruling by the Regional office.

U.S. Citizenship and Immigration Services announced today that it will be extending U.S. employment authorization to certain H-4 spouses of foreign nationals in H-1B status.  Family members of H-1B workers are permitted to enter the United States in H-4 status as dependents of the H-1B worker, but they are not authorized to work.  This change permits spouses in H-4 status to apply for an unrestricted work card provided that the principal H-1B employee:

  1.  Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
  2. Has been granted H-1B status under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), which permits H-1B employees seeking permanent residency to extend their H-1B status beyond the usual six-years.

This month the Missouri Court of Appeals for the Eastern District issued an opinion which slammed the door, once again, on the ability of employers to enter into an agreement with their employees whereby parties agree to bypass the court system in favor of private arbitration.  In Jimenez v. Cintas Corporation, S.W.3d (Mo. App. E.D. 2015) the Court found that there was insufficient consideration to support such an agreement due to lack of mutuality of obligation and the at will status of Jimenez’s employment.  This is not the first time in which a Missouri court has addressed this issue.  In Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15 (Mo. App. W.D. 2008) these concepts were also addressed.  However, in Morrow, the issue of consideration was in reference to continued employment, not initial employment, which was the case in Cintas.  However, even more concerning was the fact that Cintas found that since the employer alone was exempt from arbitrating alleged violations of the non-compete provisions the agreement lacked mutuality.

While employers subject to the Family and Medical Leave Act (FMLA) must provide unpaid sick leave to employees meeting certain requirements, no federal law requires employers to provide their employees with paid sick leave.  However, employers — including those already providing their employees with paid time off (PTO) — should be aware of the recent spate of state laws and local ordinances permitting employees to earn paid sick leave time.