Work Knowledge Blog - Employment Issues and Strategies

On April 16, 2013, the Supreme Court of the United States ruled that a defendant employer’s settlement offer to a plaintiff mooted the plaintiff’s claim and prevented her from leading a collective action for unpaid wages.  The controversial ruling by a sharply divided Court suggests employers may be able to avoid collective actions under the Fair Labor Standards Act by “picking off” the named plaintiff through early action.

Continue Reading

Last week, I spoke at the 7th Annual National HR in Hospitality Conference on the topic of compliance in hiring.  It was a pleasure to sit on this panel with Debbie Brown, the Vice President of Human Resources for the Four Seasons Hotels and Resorts.  Debbie provided very practical and meaningful insight into the myriad of issues that plague HR professionals in the hiring process, including everything from background checks, drug testing, I-9 compliance, and hiring assessments and criteria.  Highlights from our presentation included the following: 

• Can employers still use background checks in light of the EEOC's recent guidance?  Employers should not seek information regarding and applicant's arrest record.  When looking at an applicant's conviction record, an employer should establish business necessity between the nature/gravity of the offense, the passage of time since the conviction, and the relevance to the nature of the job sought.  This should be an "individualized assessment." 
• What about drug testing in light of state laws that legalize marijuana for medical and recreational use?  With the exception of Arizona, courts have generally ruled that a state's medical or recreational marijuana laws apply only to criminal prosecution, not to workplace rules.  So, employers can have policies against hiring applicants who test positive for marijuana (except in Arizona).  Use of medical marijuana would not be considered a "reasonable accommodation" under the ADA because under Federal law, marijuana remains illegal.  This question has not been answered under state laws.
• Does an employer have to use E-Verify?  All federal contractors and their subcontractors paid over $3000 must use E-Verify.  Nine states require private employers to use E-Verify. 
• Can employers use hiring assessments, such as personality tests, when hiring?  Yes, so long as the questions do not run afoul of the ADA.  For example, questions that could reveal a mental disability should not be included, such as asking an applicant to agree or disagree with the statement, "many people cannot be trusted."  The EEOC has opined that questions such as "I dislike having several things to do on the same day" would be permissible.  These types of tests are best utilized post-offer, pre-employment, similar to a medical/physical screening. 

The Conference provided many opportunities for attendees to ask questions and get more than just legal advice.  Attendees received practical advice about implementation and application.  If you have not attended before, it is a worthwhile event!  I hope to see you next year. 

U.S. Immigration and Customs Enforcement (ICE) continues to increase its Form I-9 (employment eligibility verification) enforcement activities with more than 100 arrests in the first two weeks of 2013.  In 2012, ICE initiated more I-9 audits, increased its investigations, imposed more fines, and made more arrests than it has in four years. 

In the midst of a corporate merger or acquisition, companies can take certain steps to protect themselves from such penalties, and from inheriting the employment eligibility verification mistakes of former employers.

Continue Reading

   Celeste R. Yeager - Partner

Voir Dire -- How important is it?  Extremely important.  I was recently interviewed by Texas Lawyer's senior reporter, John Council, about "winning strategies" in a case I tried involving an alleged breach of an employment agreement.  When you try a breach of contract case to a jury, it is usually because the judge has determined that some ambiguity exists in the contract and the parties disagree about what the language of the contract means.  In determining what the parties meant when they negotiated and agreed to the contract, it all must be put into context.  The context of this agreement was a family-owned business, which operates differently than a more "corporate" environment.  For example, there were no previous agreements drafted for this position.  In fact, this was the first time someone other than the owner had been the President.

Continue Reading

  Dustin J. O'Quinn

U.S. Citizenship and Immigration Services (USCIS) released Form I-821D today and announced the process for requesting deferred action based on the guidelines described in the Secretary of Homeland Security's June 15, 2012 memorandum.  USCIS will begin accepting these applications tomorrow, August 15, 2012.

The official title of the six-paged form is "I-821D, Consideration of Deferred Action for Childhood Arrivals".  As described earlier, the childhood arrivals are called “DREAMers,” referencing the similarities between the June 15th memorandum and the proposed DREAM Act. The form must be filed simultaneously with Form I-765, Application for Employment Authorization and the accompanying worksheet, Form I-765WS, created specifically for childhood arrivals to establish a need for employment authorization. 

Continue Reading