Key Takeaways: Labor and Employment Virtual Day

Executive Summary

The Husch Blackwell Labor and Employment Virtual Day webinar provided comprehensive updates on crucial legal topics, including the latest developments in federal and state non-compete laws, the impact of AI on employment practices, reverse discrimination claims, and the implications of recent NLRB decisions. The event also covered practical guidance on wage and hour compliance, immigration enforcement, and international employment considerations. Key takeaways included the importance of proactive compliance, the need for clear and consistent policies, and the significance of staying informed about evolving legal standards to mitigate risks and ensure lawful employment practices.

Speakers

  • Vna Bangera
  • Karthik on24
  • Veeksha ON24
  • Owen Davis
  • Tracy Wolf
  • Rachel Kim-Walter
  • Cilla Kasper
  • AJ Weissler
  • Randy Thompson

Key Takeaways

1. NLRB Future Expectations: The webinar provided an in-depth overview of the current state and future expectations of the National Labor Relations Board (NLRB), highlighting the impact of the lack of a quorum and the role of the General Counsel in setting the agency's agenda.

2. FICRA Compliance Importance: Key insights were shared on the importance of compliance with the Fair Credit Reporting Act (FICRA) when conducting background checks, especially with the increasing use of AI in these processes.

3. ICE Enforcement Preparation: The session on ICE enforcement emphasized the need for employers to prepare for potential visits by ensuring I-9 compliance and having clear policies and training for staff on how to handle such situations.

4. International Employment Differences: The discussion on international employment highlighted the significant differences between U.S. and European employment laws, particularly around at-will employment, vacation policies, and data privacy regulations.

5. Wage Hour Pitfalls: Practical advice was given on how to avoid common wage and hour pitfalls, such as misclassifying employees and improper handling of meal period deductions, to prevent costly class or collective action lawsuits.

Key Quote

I'm convinced that nobody flosses their teeth. I certainly don't. You know, that's why we keep the camera not so tight since you don't have that good to look. Actually, teeth are my teeth anyway, are genetically perfect. It's the only part of me that is. And so I do really appreciate that, you know, flossing is something that maybe some people have to do, but I don't, and I'm going to admit that. I'm going to admit that to all of you because that's how important I think telling the truth is.

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Webinar

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FAQs: Labor and Employment Virtual Day

General Information

1. What is the National Labor Relations Act (NLRA)?
The NLRA is a federal act that governs the relationship between employers and unions, providing certain rights to all employees of private employers, regardless of whether the workplace has a union or not. It includes Section 7, which gives employees the right to engage in concerted activities to improve their terms and conditions of employment.

2. What is the role of the National Labor Relations Board (NLRB)?
The NLRB is the agency responsible for administering the NLRA. It includes the general counsel, who sets the agenda and policy for the agency, and the board members who issue decisions and orders. Currently, the NLRB is operating with only one member, which affects its ability to issue decisions.

Employment Practices

1. What are the key considerations for employers when conducting background checks?
Employers must comply with the Fair Credit Reporting Act (FICRA) when using third-party consumer reporting agencies to conduct background checks. This includes providing clear and conspicuous written disclosure, obtaining written authorization, providing a summary of rights under FICRA, and certifying compliance to the consumer reporting agency.

2. How should employers handle meal period auto deductions?
Employers should ensure that employees are actually taking their meal periods and have a system in place for employees to report missed or interrupted meal periods. It is recommended to avoid automatic meal period deductions and instead have employees clock in and out for their breaks.

3. What are the requirements for non-compete agreements in California?
California has strict laws against non-compete agreements. Employers are generally prohibited from using non-compete clauses with employees, and any such agreements are likely to be unenforceable. Employers should focus on other methods, such as non-solicitation and confidentiality agreements, to protect their business interests.

International Employment

1. What are the vacation leave requirements for employees in the Netherlands?
In the Netherlands, employers are required to provide employees with at least four times the weekly working hours as vacation leave. For a full-time employee working 40 hours per week, this amounts to 20 vacation days per year. Many Dutch employers offer more than the statutory minimum.

2. How does the concept of at-will employment differ between the US and the Netherlands?
In the US, at-will employment allows employers to terminate employees for any reason, as long as it is not illegal. In the Netherlands, employment contracts are either fixed-term or indefinite, and termination requires a valid reason and often involves a formal process, including potential severance payments.

3. What should US employers consider when hiring employees in the Netherlands?
US employers should use employment contracts that comply with Dutch law, even if the employee is working remotely from the Netherlands. It is important to avoid using US employment agreements with US law provisions, as Dutch employees can claim the protections of Dutch law if it is more beneficial to them.

Immigration and Compliance

1. How can employers prepare for an ICE visit?
Employers should minimize risk through compliance by regularly reviewing Forms I-9 and training staff on proper completion. Additionally, employers should have a clear policy in place for interacting with ICE, designating a company representative to handle such visits and understanding the difference between public and private spaces.

2. What steps should employers take after an ICE visit?
Employers should document everything that happened during the visit, including the names and badge numbers of ICE agents and the questions asked. It is also important to inquire about the status of any detained employees and consider the potential impact on public communications and media.

3. What are the potential consequences of non-compliance with Form I-9 requirements?
Non-compliance with Form I-9 requirements can result in significant fines, with penalties reaching up to $3000 per I-9. Employers should ensure that all Forms I-9 are properly completed and maintained, and consider conducting regular internal audits to identify and correct any issues.

Blog: Navigating DEI and Compliance: Key Considerations for Employers

Introduction

Employers must navigate complex regulations on diversity, equity, and inclusion (DEI) initiatives, government certifications, and the impact of artificial intelligence (AI) in business operations. The legal landscape for non-compete agreements and evolving employment laws in California further complicate compliance. This blog provides insights to help employers stay informed and compliant.

Key Considerations for DEI and Compliance

The Equal Employment Opportunity Commission (EEOC) warns that DEI efforts based on protected characteristics could be unlawful. Practices like diverse candidate slates must avoid discrimination claims under Title VII of the Civil Rights Act. Employers should ensure DEI initiatives are inclusive and do not create a hostile work environment.

Executive orders related to DEI practices face ongoing legal challenges. Employers must avoid preferences based on protected characteristics and ensure consistent candidate evaluation. Executive Order 14173 mandates thorough and accurate certification processes for federal contractors, impacting compliance and potential legal risks under the False Claims Act.

AI in the Workplace

AI tools like ChatGPT streamline tasks but require ethical and effective use. AI in HR processes can perpetuate biases, necessitating continuous monitoring. Employers must stay informed about federal and state regulations to avoid legal challenges. AI's impact on labor relations requires careful negotiation with unions and employees.

Non-Compete Agreements

The Federal Trade Commission (FTC) has shifted focus from a blanket ban on non-competes to targeting specific industries. State laws vary widely, with some states implementing complete bans or specific restrictions. Delaware's approach to non-competes is becoming stricter, emphasizing the need for precise terms.

Employment Law Updates in California

California prohibits non-compete agreements and imposes strict requirements for background checks under the Fair Chance Act. Reforms to the Private Attorney General's Act (PAGA) increase settlements for employees. Paid family leave laws have been updated to provide immediate benefits without requiring accrued vacation use. Legislation now prohibits mandatory attendance at political or religious meetings, impacting unionization discussions.

Employee Classification and Timekeeping

Misclassification and timekeeping issues can lead to costly lawsuits. Employers should avoid automatic meal period deductions and ensure off-the-clock remote work is properly recorded. Regular audits, clear policies, and training are essential to maintain compliance.

Labor Law and NLRB Developments

The National Labor Relations Board (NLRB) faces legal challenges affecting its authority. Employers must understand the intersection of political activism and unionism in the workplace. State labor laws are increasingly filling gaps left by the NLRB, necessitating compliance with state-specific regulations.

ICE Visits and Form I-9 Audits

Employers must regularly review Forms I-9 to ensure compliance. Proactive steps include clear policies, designated contacts for ICE interactions, and internal audits. Misrepresentations on Form I-9 can lead to prosecutions under the False Claims Act.

FICRA and AI in Background Checks

Employers using AI in background checks must comply with the Fair Credit Reporting Act (FICRA). This includes obtaining written authorization and providing a summary of rights. AI-generated reports must adhere to FICRA requirements to avoid legal issues.

Managing a Transatlantic Workforce

Employers must comply with local regulations in countries like the Netherlands, including detailed employment contracts and data protection laws under GDPR. Misclassification of employees and the use of AI in workforce management require careful compliance to avoid legal repercussions.

Conclusion

Employers must balance inclusivity with compliance, ensure accurate certifications, and adapt to AI advancements while staying informed about non-compete laws and employment regulations. Regular audits, clear policies, and proactive compliance are essential to avoid legal pitfalls and maintain a fair workplace.