Human Resources Conference - National Council of Farmer ...

www.ncfc.org

National Council of Farmer Cooperatives

Human Resources ConferenceOctober 2-4, 2019 • Fort Worth, Texas

Attendee List

P a g e 1 | 3

NCFC’s Human Resources Conference

2019 Attendee List

Kristy Albrecht Shareholder Fredrikson & Byron, P.A. (701) 237-8201 / [email protected] Eric Bassett Senior Partner and Association Health & LJET Lead Mercer Health & Benefits (214) 220-6213 / [email protected] Aubrey Bastian Benefits Manager GROWMARK, Inc. (309) 557-6125 / [email protected] Sue Bechtel Human Resources Generalist United Producers, Inc. (614) 433-2198 / [email protected] Greg Bell Vice President of Administration & Human Resources Plains Cotton Cooperative Association (806) 762-7234 / [email protected] Matthew Bendler Vice President, Human Resources Ag Processing Inc. (402) 498-2260 / [email protected] Cindy Bertram Human Resources Consultant Triangle Cooperative Services Company (817) 991-4385 / [email protected] Scott Blickenstaff Vice President, General Counsel and Secretary Amalgamated Sugar (208) 383-6500 / [email protected]

Claire Brandenburg Compensation and Affirmative Action Consultant Farm Credit Foundations (651) 402-3577 / [email protected] Bobby Brown Manager, Benefits & Human Resource Operations Southern States Cooperative, Inc. (804) 281-1376 / [email protected] John Cain Human Resource Manager Tennessee Farmers Cooperative (615) 948-5985 / [email protected] Loya DePooter Senior Manager, Compensation CoBank (303) 740-4124 / [email protected] Jamie Dickerson Human Resource Manager Sunsweet Growers Inc. (530) 822-2819 / [email protected] Beth Fannin Senior Manager, Talent Acquisition GROWMARK, Inc. (309) 557-6133 / [email protected] Tim Goodman Partner Dorsey & Whitney LLP (612) 340-2825 / [email protected] Geralyn Gravatt Senior Vice President, Human Resources Southern States Cooperative, Inc. (804) 281-1249 / [email protected]

P a g e 2 | 3

Mike Hunskor Human Resources Skagit Farmers Supply (360) 899-4707 / [email protected] Loan Huynh Shareholder Fredrikson & Byron, P.A. (612) 492-7165 / [email protected] Tina Johnson Senior Vice President, Human Resources Alabama Farmers Cooperative, Inc. (256) 308-1657 / [email protected] Kelly Kerrigan Director, Human Resources Michigan Milk Producers Association (248) 474-6672 / [email protected] Crystal Koett Human Resource Manager Kanza Cooperative Association (316) 444-2141 / [email protected] Melissa Kucera Vice President, Talent Management CoBank (720) 583-9179 / [email protected] Michelle Leeder Vice President, Human Resources Landmark Services Cooperative (608) 819-3136 / [email protected] Mark Martens Co-Owner Agri Placements International (580) 227-4747 / [email protected] Karen Michael President KarenMichael, PLC (804) 423-2542 / [email protected]

Taylor Mitchell Director of Business and IT Processes Producer Cooperative Association (979) 778-6000 / [email protected] Kevin Paul Attorney/Owner Range Law + Policy (303) 376-3704 / [email protected] Russell Robertson Vice President, Human Resources Staplcotn (662) 453-6231 / [email protected] Philomena Satre Director of Diversity & Inclusion and External Strategic Partnerships Land O’Lakes, Inc. (651) 375-6769 / [email protected] Courtney Thomas Staff Attorney GROWMARK, Inc. (309) 557-6287 / [email protected]

Anne Warren Executive Vice President and Chief Human Resources Officer Mid Kansas Cooperative Association (620) 345-6328 / [email protected] Kim Wirka Human Resources Director, WinField United Land O’Lakes, Inc. (651) 375-2505 / [email protected]

P a g e 3 | 3

Marlis Carson Senior Vice President, Legal, Tax and Accounting and General Counsel (202) 879-0825 / [email protected] Bonita Harrison Executive Assistant to the President/CEO and Director of Finance (202) 879-0824 / [email protected] Janet Peterson Executive Assistant, Legal, Tax and Accounting (202) 879-0808 / [email protected] Lisa Van Doren Vice President & Chief of Staff, Government Affairs (202) 879-0811 / [email protected]

NCFC Staff

Agenda

P a g e 1 | 2

WEDNESDAY, OCTOBER 2 6:30-8:00pm Opening reception at the hotel China Berry Room

THURSDAY, OCTOBER 3 8:00-8:30am Breakfast Cypress II 8:30-9:20 Welcome Cypress I Marlis Carson Senior Vice President & General Counsel NCFC Washington Legislative and Regulatory Update Lisa Van Doren Vice President and Chief of Staff for Government Affairs NCFC 9:20-10:10 ERISA, Benefits and Taxes: New, Noteworthy and More Tim Goodman Partner Dorsey & Whitney LLP 10:10-10:20 Break 10:20-11:10 Association Health Plans: Mercer’s Best Practices Eric Bassett Senior Partner and Central Market Business Leader Mercer Health & Benefits 11:00-Noon What A Long, Strange Trip: Legalized Weed & Workplace Rules Kevin Paul Attorney/Owner Range Law + Policy

Noon-1:00pm Lunch Cypress II 1:00-1:50 2019 Legal Update for HR Professionals Cypress I Kristy Albrecht Shareholder Fredrikson & Byron, P.A.

NCFC Human Resources Conference

Agenda Sheraton Fort Worth Downtown

October 2-4, 2019

P a g e 2 | 2

THURSDAY, OCTOBER 3 CONTINUED 1:50-3:20 Diversity & Inclusion: Planting Seeds for Recruitment and Retention Philomena Satre Director of Diversity & Inclusion and Strategic External Relationships Land O’Lakes, Inc. 3:20-3:40 Break 3:40-4:30 Supervisors: Issues, Training and Policies Kristy Albrecht Shareholder Fredrikson & Byron, P.A. 4:30-5:00 Roundtable Discussion 6:30 Dinner Reata Restaurant (310 Houston Street) Meet in the hotel lobby at 6:15pm for a 15-minute walk to the restaurant

FRIDAY, OCTOBER 4 7:30-8:00am Breakfast Cypress II 8:00-9:15 The H2A & H2B Guest Worker Programs Cypress I

Loan Huynh Shareholder Fredrikson & Byron, P.A. Mark Martens Co-Owner Agri Placements International Courtney Thomas Staff Attorney GROWMARK, Inc.

9:15-9:35 Break 9:35-11:15 Pay Equity & Reasonable Accommodations Karen Michael President KarenMichael, PLC 11:15-11:45 Roundtable Discussion and Future Planning 11:45 Adjourn

Washington Legislative and Regulatory Update

Lisa Van Doren Vice President and Chief of Staff for Government Affairs NCFC

Lisa Van Doren serves as Vice President and Chief of Staff for Government Affairs at the National Council of Farmer Cooperatives (NCFC). In this capacity, she oversees NCFC’s government affairs staff and directs NCFC’s public policy agenda. She serves as NCFC liaison to the Congressional Farmer Cooperative Caucus and coordinates the activities of the NCFC Government Affairs Committee.

Prior to joining NCFC in March 2008, Lisa served as Director of Public Policy for the National Corn Growers Association. She also served as Professional Staff for the House Committee on Agriculture. There she worked on the 2002 Farm Bill and managed numerous key legislative issues including food safety inspection programs, crop protection regulations, specialty crops, energy, clean air, and forest management.

Lisa also worked in the personal office of former Rep. Charles Stenholm (D-TX) as a legislative assistant and was an intern for former Rep. Ciro D. Rodriguez (D-TX).

A native Texan, Lisa was raised in Hondo, about 45 miles west of San Antonio, on a beef cattle and horse ranch. She graduated from Texas A&M University with a Bachelor of Science in Agricultural Development in 1998. Lisa also earned a Masters of Science in Environmental Sciences from The Johns Hopkins University in 2002. She lives in Washington, DC, with her husband, Terry, their daughter, Amelia, and son Bobby.

Washington Update

Lisa Van Doren

NATIONAL COUNCIL OF FARMER COOPERATIVES

The legislative outlook is always

complicated but more so now

than in the past. A number of

factors influence the prospect

for success on several issues

vital to co-ops and their

members.

Democrats & Republicans More Ideologically Divided Than in the Past

PEW RESEARCH CENTER

Three Very Different Personalities Must Cooperate to See Legislative Progress

Trump’s (un)Popularity

Democrat Versus Democrat

JoeBiden

ElizabethWarren

BernieSanders

KamalaHarris Pete Buttigieg

CoryBooker

AmyKlobuchar

AndrewYang

JulianCastro Beto O’Rourke

Wayne Messam

MarianneWilliamson

TomSteyer

JohnDelaney

Billde Blasio

TulsiGabbard

TimRyan

SteveBullock

Michael Bennet

JoeSestak

KirstenGillibrand(dropped out)

SethMoulton(dropped out)

Jay Inslee(dropped out)

JohnHickenlooper(dropped out)

EricSwalwell(dropped out)

DonaldTrump

BillWeld

Joe Walsh Mark Sanford

2020 candidates for US president

Slide last updated on: September 9, 2019

While the President’s chief of staff told reporters

ahead of the SOTU that “nobody cares about

deficits,” spending and revenue remain on a

course that is unsustainable in the long

term.

The Deficit Will Top $1 Trillion in Fiscal 2020

$2

$3

$4

$5

$6

$7

2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2028

Revenue Outlays

The Gap Between Federal Revenue and Outlays is IncreasingCBO projections, in trillions and fiscal years

Note: 2017 data are actual, other years are projections Source: Congressional Budget Office

Debt Will Approach an Historic Level

50%

60%

70%

80%

90%

100%

2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028

Debt Will Account for a Larger Share of the Economy Debt held by the public as a share of gross domestic product, by fiscal year

• Debt will surpass 96 percent of GDP by fiscal 2028; highest since end of World War II

• CBO said it makes “fiscal crisis” more likely

• Interest payments will crowd out other spending, leaving little room for lawmakers to use tax or spending legislation to respond to challenges

• Debt is accumulated when the government runs deficits and borrows to cover its spending

Notes: 2017 data is actual, other years are projections. GDP – Gross Domestic Product Source: Congressional Budget Office

What are the implications of all of these dynamics?

Every piece of legislation will force policy makers from both parties to make the following calculations—does passing this (or killing this) help me or the other party more? Is there more risk in being seen as “doing nothing” or in giving the other party a “win”? How does this action influence both the presidential and congressional races in 2020?

How these questions are answered by President Trump, Speaker Pelosi and Leader McConnell will determine whether the following priorities see action before the end of the year.

Immigration Reform

A legislative solution must address:

Respect for and recognition of the importance of our current experienced workforce to the sustainability of US based agricultural production and food security by providing:• A mechanism for qualifying farmworkers to continue working in agriculture and/or reside in the United States based

on agricultural work experience and commitment;• A mechanism to earn legal status to work and/or reside in the United States based on agricultural work experience

commitment; and • A mechanism to protect immediate family members.

Recognition of the critical need for access to a current and future workforce for the sustainability of US based agricultural production and food security by providing a flexible and efficient agricultural worker visa program that includes:• Availability to all agricultural producers without regard to the temporary, seasonal or year‐round nature of the job;• A fair and predictable market‐based approach to wages and benefits that does not unduly impede U.S.

competitiveness;• Flexibility in the length of visas to address the needs of different agricultural sectors;• Mobility; and• Ability to meet any future industry production expansion labor needs with no arbitrary limits.

Status of Negotiations:

Treatment of the current workforce has largely been agreed to: Blue Card: if 10+ years of work experience, must work for 4 years in ag to receive

blue card; less than 10 years, individual must work 8 years in ag to qualify Also allowed to join H‐2A if they do not want to become a permanent resident $1,000 fine payable by year 8

Open issues include wage rate calculation, treatment of year‐round labor, and H‐2A modernization/streamlining.

Goal is to have final legislative language for Committee consideration when they return mid‐October. However, the Judiciary Committee is going to have limited bandwidth for the foreseeable future….

Ongoing Negotiations with Key Members of Congress, Ag, and Labor Union

Administrative Actions to H-2A Visa Program

Proposed rule streamlining the H‐2A Agricultural Guest Worker Visa Program:• Proposes more flexibility and improved technology modernization• The most significant change likely will be in the treatment of calculating wage rates. Under the

proposed rule, the DOL would disaggregate the job occupations and report the wages by occupation and region, which would then be used to determine the AEWR.

• The proposed rule is that it does not address the temporary and seasonal challenges many agricultural industries with year‐round needs face. The Administration has reiterated they do not believe they have the authority to make such changes to the existing H‐2A program, rather such changes must come from Congress.

Final Electronic Rule:• Eliminates the requirement to advertise a job opening in print newspapers instead shifting to

advertising on the DOL and State Workforce Agency websites, which are further reaching and more cost effective

• DOL’s Office of Foreign Labor Certification announced updates to the pertinent H‐2A forms and online filing process for the H‐2A temporary agricultural program.

Trade

Status of Trump’s Major Trade Actions

Timeline of U.S.-China Trade Dispute (1/2)

Timeline of U.S.-China Trade Dispute (2/2)

Key Elements of USMCA

USMCA Timeline: After Submitting to Congress

What Members of Congress are sayingabout USMCA

What does Congress want out of the agreement?

Climate Change

Any action in Washington on climate change would happen after the 2020 election at the

earliest.

However, how will the marketplace respond to increasing interest on the topic by

consumers?

Key Needs for Agriculture in Debate

• Incentivizing innovation: Voluntary, incentive‐based programs that enhance producer profitability and production methods, which have already allowed us to achieve incredible sustainability gains.

• Reducing barriers: The examination of existing state and federal programs to identify efficiencies, reduce regulatory obstacles, and improve program delivery.

• Science‐based research: The development of new technologies and practices to help farmers and ranchers achieve greater efficiencies and enhance sustainability.

• Resilient infrastructure: Initiatives to maintain or improve capacity of the infrastructure that supports the operations of farmers and ranchers, rural communities, and related agricultural businesses.

• Focusing on outcomes:Market‐based solutions, led by agricultural producers, that improve rural communities while recognizing the diversity of agricultural practices, climates, challenges, and resources needs.

Agriculture also Needs to Tell our Story

Pension Relief

The SECURE Act, H.R. 1994, provides PBGC premium relief for 400 or so farmer cooperatives that have multiple‐employer pension plans

The SECURE Act passed the House 417‐3 in May

The bill is currently being held up by Senator Cruz (due to it not including home schooling expenses under 529 savings plans) from moving under Unanimous Consent in the Senate and on to the President’s desk

Hopeful it can be attached to must pass legislation/end of the year spending bill

Status of the SECURE Act

NATIONAL COUNCIL OF FARMER COOPERATIVES

Any Questions?

Than

k You!

1

DOL H-2A Modernization Proposed Rule Summary of Changes from 2010 Rule to NPRM

July 26, 2019

Wage Rates / Surety Bond Existing H-2A Program Proposed NPRM Changes

Employer must pay highest applicable wage rate: AEWR, prevailing rate, CBA rate, or state/federal minimum; wage

increases mid-contract.

Retains current “highest applicable” rule; mid-contract increases take effect 14 days after publication; mid-contract decreases

are not available - employers must continue to pay the rate advertised.

USDA NASS surveys wages on regional basis (CA or FL or multiple states);

Weighted average of gross earnings of crop and livestock workers (excluding

supervisors and managers); Includes piece-rate, bonus, and OT pay;

Same wage for all agricultural workers in that region.

Disaggregated by occupation groups, using USDA data as primary source, backed up by

BLS data where necessary, but using nationwide data where regional-level data not available; efforts with USDA to obtain wage-only rates (not piece-rate, OT, etc.).

DOL requests comments on all aspects of the proposed wage-setting method.

Prevailing wage rate determined by SWAs under ETA Handbook 385 dating back to

early 1980s.

Replaces Handbook 385 with concrete controls on SWA prevailing wage survey

data, requiring specific minimum response rates before finding a SWA survey to be

valid/enforceable. H-2A labor contractors surety bonds to

guarantee wages based on adverse effect wage rate for region (“AEWR”); employers

can submit scanned bonds.

H-2A labor contractors surety bonds to guarantee wages based on average annual

nationwide wage, with higher bond amounts. Allows for submission of

electronic surety bonds.

Transportation / Housing Existing H-2A Program Proposed NPRM Changes

Employer pays for inbound travel costs from “place of recruitment”; litigation over

where that occurs.

Return to earlier interpretation that inbound travel costs run from consulate

not from worker’s home. Rules call for reimbursement at 50% point

of contract; FLSA interpretation under Arriaga requires reimbursement in first

pay period, instead.

Retains current rule; no specific reference to Arriaga decision, but explicit reference to employer’s separate FLSA obligations.

Local transportation must meet applicable local/state/federal standards and MSPA

insurance rules.

Specifically applies all MSPA standards for transportation. Invites comments on

further modifications to improve transportation safety.

2

Employer must provide free housing for H-2A workers and remote U.S. workers; SWA must inspect annually before certification.

Retains requirement of free housing and pre-certification inspection but allows

government officials other than SWAs to conduct inspection; specific rules for

rental/hotel housing. Annual inspections. Multi-year inspections, employer self-

inspection and self-certification in Year 2.

Recruitment / Start Date Existing H-2A Program Proposed NPRM Changes

Print newspaper advertisements, once on a Sunday and once on another day.

TBD – proposal to replace print ads with online advertising only; separate final rule

to be announced soon. Requirement to contact U.S. workers

employed in the previous year. Same, but now states employer must contact FLC’s U.S. employees, as well.

Advertise out-of-state where OFLC considers “labor supply” states.

Requires specific analysis by OFLC of out-of-state referrals before finding that a

particular state is a “labor supply” state. Employers required to hire all eligible workers through 50% of work period.

Employers required to hire all eligible workers through later of first 30 days or

until end of “staggered entry” period. All workers covered by job order must

begin on start date listed. Allows for: (1) actual start of work within 14 days of “anticipated” first date of need;

and (2) “staggered entry” at employer’s discretion over first 120 days of contract.

No requirement for SWA to check work-authorization of referrals.

Retains (verbatim) current rule. No discussion in preamble.

Jobs limited to single area-of-intended employment; unwritten policy of limiting

to 60-mile radius.

“Minor amendment” to replace “place of the job opportunity” and “worksite” with

“place(s) of employment”; specific allowance of central “pick-up” point; invites comments on definition and

possible use of objective factors.

Application / Certification Process and Fees Existing H-2A Program Proposed NPRM Changes

Employers can file electronic or paper applications.

Employers must file electronically.

Requires original “wet” signatures. Allows scanned or electronic signatures. DOL and DHS separately determine

whether a job is “temporary” or “seasonal.” Single agency determination;

invites comments on which agency should make that adjudication.

File with SWA 75-60 days before start date; file with CNPC at least 45 days before start

File with CNPC in 75-60 window, but then sent to SWA for review; 45-day filing with

CNPC; timelines for SWA and CNPC review;

3

date; CNPC to certify at least 30 days before start date.

steps to commit to certification at least 30 days prior to first date of need, but no

specific guarantee. Emergency filing waives 45-day

requirement and allows for concurrent SWA/CNPC processing under “Act of God”

situations or first-time filers.

Retains current rule.

Certification fee of $100 plus $10 for each position certified up to $1000 max with

joint-employer association paying $100/employer, $10/job, $1000 max

Retains current rule.

Appeal from denial must be filed within 7 calendar days; employer specifies whether

requesting de novo review or administrative record review.

Appeal from denial must be received by OALJ within 10 calendar days; if employer does not specify de novo review requested, OALJ will automatically treat as request for

administrative record review.

Post-Certification Modifications Existing H-2A Program Proposed NPRM Changes

Once DOL certifies the job order, no changes to number of workers or places

where work will be performed are allowed.

Post-certification modifications permitted as to number of workers, work period, and

places of work, under certain conditions and within certain limits.

Early contract termination only for “contract impossibility”/force majeure.

Early termination with agreement of employer/employees and CNPC approval.

Eligibility

Existing H-2A Program Proposed NPRM Changes Uses FLSA, IRC, MSPA definitions of

“agriculture,” excludes reforestation, pine straw gathering, and dairy.

Adds pine straw and reforestation (not including utility or right-of-way spraying).

Invites comments on definition of “seasonal” to include dairy.

Informal guidance on “special procedures” for itinerant animal shearing, beekeeping,

and custom harvesting.

Codified notice-and-comment rules for itinerant shearing, beekeeping, custom

harvesting, and reforestation. Ability to petition for future “special

procedures” as needed. Eliminates informal “special procedures,” citing Mendoza v. Perez sheepherder case.

Enforcement

Existing H-2A Program Proposed NPRM Changes References to joint employment, but

caselaw has been inconsistent. Proposes specific joint-employment test that tracks current WHD rulemaking and

common-law agency definitions; specifically states that FLSA/MSPA

4

definitions of joint employment “neither apply nor are relevant to” determining

H-2A joint employment. DOL can collect back wages and/or CMPs

from any or all joint employers. DOL will consider whether association or other joint employers received financial

benefit from violation committed by other employer and reduce CMPs accordingly.

Civil money penalties for violations; debarment for certain substantial

violations.

Increases to certain penalties; no change on debarment as remedy.

Requirement to provide same wages and benefits to any U.S. workers in

“corresponding employment,” i.e., performing any part of job duties.

No change from current law. No discussion in preamble.

Separate enforcement by OFLC, WHD, DOJ, and DHS.

Coordinated enforcement, with shared authority of OFLC and WHD, referrals to

other agencies for enforcement. Debarment for work outside of job

duties/locations listed in certification. No change.

ERISA, Benefits and Taxes: New, Noteworthy and More

Tim Goodman Partner Dorsey & Whitney LLP

Tim Goodman works with employers to assist them in navigating through complex tax, employment, and other laws that govern the benefits they provide to employees and executives. Tim works with employers on medical plans, retirement plans, executive compensation, and a wide range of benefits. Tim works with a broad array of employers, with a special focus on assisting cooperatives, agribusiness companies, hospitals and health care entities, and financial institutions.

Employers have Tim provide advice on health care reform (the ACA), wellness plans, and other welfare plan matters (ranging from cafeteria and health FSAs to severance and tuition plans). With respect to health care reform, Tim advises employers on the new fees (from the employer shared responsibility fee to the Cadillac tax), assists them in preparing for reporting on Form 1095-C, and explains the new requirements ranging from notice requirements to plan mandates.

Tim recognizes the complex nature of the rules governing retirement plans and works with employers to review operations, address errors, and help employers maintain the tax-qualified status of their plans. Tim advises employers on qualified and nonqualified retirement plans (including defined benefit, 401(k), 403(b), 457(b), and 457(f) plans, and section 409A).

ERISA, Benefits and Taxes: New, Noteworthy and More

(Bonus – ERISA Best Practices)

October 3, 2019

Tim Goodman

Dorsey & Whitney LLP

2

Benefits –Pop Quiz

• ERISA is acronym – what do letters stand for?– Bonus: What year was ERISA enacted?

• Under ERISA, can Department of Labor require yourbusiness to provide your:– Payroll records– Benefit plan contracts– Records related to selecting investments

• Benefits represent on average (according to Bureau ofLabor Statistics) what percent of pay that employer paysemployee?– 5%– 10%– 15%– More than 25%

3

Retirement Plans –Hardship Distributions

• Legislation– Tax Cuts and Jobs Act of 2017 (TCJA)

• Casualty deductions are limited to Presidentially declared disaster – limitscasualty losses that qualify for hardship distributions– Impacts

– Bipartisan Budget Act of 2018 (BBA)• Hardship rule changes (BBA § 41113; Code § 401(k); effective 2019)

– Removes need to suspend elective contributions for 6 months– Removes need to take loans before requesting hardship

– Expands money sources – allows withdrawal from QNECs, QMACs, andearnings on them and elective contributions

• Regulations– Proposed regulations (83 Fed. Reg. 56763 (11/14/18) (26 C.F.R.

§ 1.401(k)-1(d))

• Administration– Need to remove suspension of contributions by 1/1/20

4

Retirement Plans –Multiple Employer Plans (MEPs)

• Legislation– Pending legislation (Retirement Enhancement and Savings Act (RESA))

• Regulation– Multiple employer plans on the retirement plan side

– Final regulations – DOL (84 Fed. Reg. 37508, 7/31/19, 29 C.F.R. § 2510.3-55)

• Provide clarity regarding “bona fide” groups and associations

– Request for information – DOL (84 Fed. Reg. 37545, 7/31/19)

– Proposed regulations – IRS (84 Fed. Reg. 31777, 7/3/19, Prop. 26 C.F.R. § 1.413-2)

• Provide clarity regarding “bona fide” groups and associations of employersand professional employer organizations (“PEOs”) that can sponsor MEPs

• Administration– Executive Order 13847 (8/31/18))– Field Assistance Bulletin 2019-01 (7/24/19)

(https://www.dol.gov/sites/dolgov/files/EBSA/employers-and-advisers/guidance/field-assistance-bulletins/2019-01.pdf)• Provides relief for MEP reporting

5

Retirement Plans –Definition of Fiduciary

• Legislation– No change

• Regulation – DOL– Proposed regulations issued in 2010– Proposed regulations withdrawn in 2011– New proposed regulations issued in 2015– Final regulations issued in 2016– Final regulations delayed and revised in 2017– Final regulations withdrawn in 2018 after court ruling– DOL has on work plan to issue new proposed regulations

• Regulation – SEC (Regulation BI or Regulation Best Interest)– Final regulations (84 Fed. Reg. 33318 (7/12/19))

6

Retirement Plans –Definition of Fiduciary (Continued)

• Litigation– DOL fiduciary rule

• Struck down by the Fifth Circuit in March of 2018• Trump administration did not appeal• Fifth Circuit then vacated the rule• Chamber of Commerce of the U.S.A. v. U.S. Dep’t of Labor, 885 F.3d 360

(5th Cir. 2018))

– SEC fiduciary rule• Seven states (California, Connecticut, Delaware, Maine, New Mexico, New

York, and Oregon) and the District of Columbia have filed suit asking thatRegulation Best Interest be vacated for having exceeded SEC's statutoryjurisdiction and for being arbitrary and capricious

• State of New York, et al. v. S.E.C., Case 1:19-cv-08365-VM, __ F.Supp.3d __(S.D.N.Y. 9/9/18)

• In addition, private entities have brought suit

7

Retirement Plans –Pending Legislation

• Legislation (pending legislation)– Retirement Enhancement Savings Act of 2019 (RESA) (HR 1007; S

972)• Is version of legislation introduced several times dating back to 2016

– Enhance the ability of employers to participate in multiple employerplans (MEPs)

– Remove the 401(k) automatic enrollment safe harbor deferral capentirely (now 10 percent)

– Simplify 401(k) safe harbor rules and give employers more flexibilityin electing to implement a safe harbor design

– And more

– Setting Every Community up for Retirement Enhancement Act of 2019(SECURE Act) (HR 1994)• Many provisions are similar to RESA

– However, includes provision that raises minimum requireddistribution age from 70½ to age 72

8

Retirement Plans –State Requirements

• Legislation– States have enacted mandatory and voluntary retirement plans for

employees who do not have access to employer retirement plans– Although generally limited to small employers, states are expanding

scope of their involvementState Enacted Implemented Form Mandatory

• California 2016 2019 anticipated State IRA Mandatory

• Connecticut 2016 2019 anticipated State IRA Mandatory

• Illinois 2015 2018 in waves State IRA Mandatory

• Maryland 2016 2020 anticipated State IRA Mandatory

• Massachusetts 2012 2017 MEPs Voluntary

• New Jersey 2016 Not specified Marketplace Voluntary

• New York 2018 2020 anticipated State IRA Voluntary

• Oregon 2015 2018 in waves State IRA Mandatory

• Vermont 2017 2019 MEPs Voluntary

• Washington 2015 2018 Marketplace Voluntary

9

Retirement Plans –State Requirements (Continued)

• Legislation – Illinois example– Illinois Secure Choice Savings Act (Secure Choice Act) (820 ILCS 80)– Requires private employers with more than 25 employees that have been

operating in Illinois for at least two years to participate in the Illinois SecureChoice program or offer another qualified retirement plan

– Covered employers required to automatically enroll employees and withhold5% of pay unless employee elects different amount or opts out

• Administration – Illinois example– Employers with 500 or more to register by 11/1/18– Employers with 100-499 to register by 7/1/19– Employers with 25-99 to register by 11/1/2019– Resources

• http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3588&ChapterID=68• https://www2.illinois.gov/rev/questionsandanswers/pages/924.aspx• https://www.ilsecurechoice.com/home/faq.html

10

Retirement Plans –State Requirements (Continued)

• Administration– DOL had issued final rule allowing states to proceed

• Savings Arrangements Established by States for Non-GovernmentalEmployees (29 C.F.R. § 2510.3-2; 81 Fed. Reg. 59464 (8/30/16))

– Congress repealed final rule in 2017• H.J. Res 66 (5/17/17)

• Litigation– California

• Howard Jarvis Taxpayers Association v. California Secure ChoiceRetirement Savings Program, No. 2:18-cv-01584. __ F.Supp.3d __ (E.D.Cal)

• U.S. Department of Justice filed "statement of interest" requesting judgedeny state's motion to dismiss lawsuit

11

Retirement Plans –Litigation

• Litigation– DC plan litigation– DB plan litigation

12

Retirement Plans –Pop Quiz

• Which of following are fiduciary actions?– Choosing plan investments?– Choosing plan providers (record keeper, trustee, etc.)?– Reviewing domestic relations order on divorce?– Deducting loan repayments and forwarding them to trustee?

• How long do employers have from deduction to forwardemployee contributions to trustee?– 7 days?– 5 days?– 2 days?– As soon as reasonably practicable?

• Do employers have obligation to search for missingparticipants?– Yes– No

13

Health Plans –Affordable Care Act

• Legislation– Tax Cuts and Jobs Act of 2017 (TCJA)

• Individual mandate (26 U.S.C. § 5000A(c); TCJA §§ 11002(d)(1)(GG),11002(e), and 11081(b))– Revised Code to zero out ($0) individual mandate tax as of 2019

– Federal Register Printing Savings Act of 2018 (FRSA)• Medical device tax (FRPSA § 4001; Code § 4191(c))

– Delayed effective date from 2018 to 2020• Cadillac tax (FRPSA § 4002; Code § 4980I; ACA § 9001(c))

– Delayed effective date from 2020 to 2022 (plan years after 2021)

• Administration– IRS sending letters to collect employer mandate for 2015 forward

• Failure to respond within 30 days results in Notice and Demand from IRSdemanding full payment of penalty

• See template letter – Letter 226-J• See IRS FAQs (https://www.irs.gov/affordable-care-

act/employers/questions-and-answers-on-employer-shared-responsibility-provisions-under-the-affordable-care-act)

14

Health Plans –Affordable Care Act (Continued)

• Litigation– Texas federal district court has invalidated entirety of ACA based on

repeal of the individual mandate, but also stayed this decisionpending review

– Texas v. United States, 340 F.Supp.3d 579 (N.D. Tex 2018) (decision);352 F.Supp.3d 665 (N.D. Tex. 2018) (stay granted)

– Case has been appealed to Fifth Circuit Court of Appeals, which maydecide the case later this year or next year

– Whatever is outcome at Fifth Circuit, an appeal to U.S. Supreme Courtis likely

– If U.S. Supreme Court agrees to hear the case, it likely will not bedecided until late 2020 or in 2021

15

Health Plans –Association Health Plans

• Legislation– No new federal legislation

• Regulation– DOL adopted final regulations revising definition of employer– Final regulation (29 C.F.R. § 2501.3-5; 83 Fed. Reg. 28912 (5/21/18))

• Regulation: Expands definition

– “Commonality of interest” expanded to include employers in:» Same trade, industry, line of business, or profession, or

» Geographically limited area, such as single state or metropolitanarea (even if it crosses state lines)

• Administration– States concerned about new AHPs

• Litigation– Court vacated regulations

• New York v. United States Department of Labor, 363 F.Suppd.3d109, 2019 WL 1410370 (D.D.C. 3/28/19)

16

Health Plans –MEWAs

• Legislation– No new federal legislation

• Regulation– No new regulations

• Administration– States contacting MEWA sponsors regarding compliance with new

state regulations (using Form M-1 filings)• Applications• Certificates• Fees

17

Health Plans –Wellness Programs

• Legislation– 2014 – EEOC brings three wellness cases (including Honeywell)

• Regulations– Americans with Disabilities Act, 81 Fed. Reg. 31126 (5/17/16)– Genetic Information Nondiscrimination Act, 81 Fed. Reg. 31143

(5/17/16)– Scope of EEOC regulations

• Incentives more limited than under HIPAA nondiscrimination• Additional notice requirements• Restrictions on offering programs to spouses and dependents

18

Health Plans –Wellness Programs

• Litigation– Pre-regulation court cases

• 2014 – EEOC brings three wellness cases (including Honeywell)• EEOC v. Flambeau, Inc., 846 F.3d 941 (7th Cir. 2017)• EEOC v. Orion Energy Services, Inc., 2016 WL 5107019 (E.D. Wisc. 9/9/16)• EEOC v. Honeywell Intl., 2014 WL 5795481 (D. Minn. 11/6/14)

– Regulation court case• AARP v. EEOC

– April 22, 2017 – District court found “that both the ADA rule and theGINA rule are arbitrary and capricious,” vacated and remanded them toEEOC for reconsideration (267 F. Supp. 3d 14, at *20 (D.D.C., 8/22/17)

– December 20, 2017 – District court prospectively vacated incentiveportions of regulations (292 F. Supp. 3d 238, 2017 WL 6542014, at *5(D.D.C., 12/20/17)) (responding to AARP motion and proposal by EEOCto have new regulations in effect by 2021)

– EEOC has not made final choice of course of action

19

Health Plans –Litigation

• Litigation

20

ERISA –Fiduciary Best Practices

• ERISA imposes a high standard on fiduciaries– Prudent, regular activities with assistance of appropriate outside

advisors (such as investment advisors) best way to address

• Fiduciary best practices– Record Activities

• Record meeting minutes• Prepare a memo providing an overview of processes (i.e., selection of a

provider)– Section 404(c) of ERISA Compliance

• Provide eligible employees (not just participants) with prospectus foreach investment option

• Provide eligible employees with additional means to obtain information(i.e., web sites)

• Review and comply with requirements under section 404(c) of ERISA

21


• Fiduciary best practices (continued)– Participant communication

• Review employee communications (i.e., summary plan description, benefitstatements, etc.)

• Confirm summary plan description describes claim procedures, providesinformation regarding direction of investments and investment risks, andprovides contact information

• Provide eligible employees with additional means to obtain information(i.e., web sites)

• Explain administrative, investment, and other fees

– Investment policy• Follow the investment policy

22


• Fiduciary best practices (continued)– Investment education

• Provide investment education but avoid investment advice

– Provider review• Review providers (including fees) on a periodic basis

• Send out requests for proposals on a periodic basis

– Current developments• Respond to developments

– Plan document review• Confirm plan provisions reflect practices and structure

Contact Information

23

Tim Goodman(612) [email protected]

Legal Notice

• This presentation is intended for general informationpurposes only and should not be construed as legaladvice or legal opinions on any specific facts orcircumstances. An attorney-client relationship is notcreated through this presentation.

24

Association Health Plans: Mercer's Best Practices

Eric K. Bassett Senior Partner and Association Health & LJET Lead Mercer Health & Benefits

Eric works with clients in all areas of health care and group benefits with particular emphasis on health care strategies, delivery system capabilities, defined contribution, and consumerism.

Eric began his 33-year health care career working for health care vendors. He has led cross-functional teams involved in the development of rural managed care strategies, integration of legacy networks and systems, physician profiling and implementation of open access networks and systems.

Eric began his consulting career with Mercer 22 years ago working with some of Mercer’s largest clients. Eric’s consulting experience includes:

Developing health care strategies that support overall business objectives and providing aframework for benefits decision-making.

Study of best practices for health care services purchasing for consumers and providers. Developing and managing health improvement, disease and demand management

programs. Chronic PCMH program design and development. Working with management and labor during collective bargaining. Integrating and consolidating benefit plans for mergers and acquisitions. Working closely with corporate committees to facilitate decision-making. Active and retiree exchange strategy and design.

Eric received his Bachelor of Science in Consumer Affairs from the University of Missouri.

H E A L T H W E A L T H C A R E E R

A S S O C I A T I O N H E A L T H P L A N S

October 3, 2019

M E R C E R ’ S B E S T P R A C T I C E S

© MERCER 2019 1

A H P S A R E C H A N G I N GC U R R E N T A N D F U T U R E E N V I R O N M E N T

• Executive Order on Health Care (Oct. 2017)

– Directs regulators to draft rules that would ease or removecertain ACA restrictions in relation to:

- Association Health Plans (AHP)

- Low cost short-term limited duration insurance

- HRAs

• DOL Released Release Final Regulations on June 19, 2018

– Stated objective is to open new markets for small employers andindividual proprietors

– Expands the commonality requirement in AHPs to includegeography (state/MSA, prior requirement was industry specific),opening up AHPs for Local Chamber of Commerce etc.

– Expands the definition of possible participants to include workingowners and sole proprietors

• Federal Court strikes down new rule expansions (March 2019)

Creating new opportunities for Associations & Franchises to deliver access

to health benefits

Key changes include the

commonality provisions and

working owners/sole proprietors

petersoj

Cross-Out

© MERCER 2019 2

M E R C E R ’ S C R E D E N T I A L SA B O U T M E R C E R ’ S A S S O C I A T I O N S B U S I N E S S

~ 5 0 0 E X P E R I E N C E D C O L L E A G U E SWe consist of colleagues in a wide range of roles,

who are experts in their respective fields

H E A D Q U A R T E R E D I N U R B A N D A L E , I O W A

With more than 65 years of experience, Mercer creates and manages insurance programs for affinity, alumni, health care, education, unions, military, professional

occupations and other membership organizations

M E M B E R B E N E F I T P R O G R A M SDesign and administer programs

including customer service, marketing, program management, carrier relations and implementation

4 0 0 + A S S O C I AT I O N C L I E N T SWe service some of the largest, most prestigious

and all types of associations in the country

P R O V I D E VA L U E T O O U R C L I E N T SWe will leverage our knowledge and expertise to help clients

meet the challenges and complexities of today’s evolving market

© MERCER 2019 3

L A W S U I T R U L I N G I M P A C T S

Plan sponsored by bona fide Association Health Plan under old

rules

“Pathway 1”

• Commonality by industry/trade

• Primary purpose other than providinghealth benefits

• Governance provided by membership

Plan sponsored by bona fide association under new Association

Health Plan rule

“Pathway 2”• Commonality extended to include

geography

• Primary purpose can be to providehealth benefits but must have otherpurpose/benefit

• Working owners are eligible

EXPANSIONS AFFORDED BY JUNE 2018 DOL RULE STRUCK DOWN

© MERCER 2019 4

T H E A S S O C I A T I O N O P P O R T U N I T YW H Y E N T E R T H E A H P S P A C E

• For the Association/Franchise

– Creates additional ties for membership

– Additional association or franchise revenue (royalties)

– A differentiator for new membership

• For the Association/Franchise Member

– Provides access to a benefit offering for small employer members that isoften unavailable or unaffordable

– Smooths benefit cost trends

– Creates greater purchasing power for the individual companies that would beunattainable for small employers

• For the Consumer

– Provides access to a Fortune 500 type benefits program for the individualemployee and family working for a small business

– Choice, a key theme for the consumer is enhanced with multiple plans anda wide array of supplemental benefits

© MERCER 2019 5

W H A T I S P O S S I B L E ?

ALLOWED PROHIBITED

Bona fide AHPs with member employers that have a common interest and genuine organizational purpose unrelated to providing benefits

AHPs with member employers that share only the same geographic location (such as a state or metropolitan area)

Facts and circumstances determine commonality, which can’t rely solely on geography

AHPs with working owners (members with no employees)

AHPs that don’t allow working owners (all members have employees)

AHPs sponsored by associations that have the primary purpose of healthcare, but also a substantial business purpose

© MERCER 2019 6

AHP Potential States

Alabama Alaska Arizona Colorado* Delaware*

Florida Georgia Hawaii* Idaho Illinois

Indiana Iowa* Kentucky Maine* Michigan*

Minnesota* Mississippi Missouri Montana Nebraska

Nevada New Mexico North Carolina* North Dakota Ohio

Oklahoma Oregon* Rhode Island* South Carolina South Dakota

Tennessee Texas Utah* Virginia* Washington*

West Virginia Wisconsin Wyoming

Look Through States

Connecticut District of Columbia Kansas Louisiana Maryland

Massachusetts New Hampshire New Jersey Pennsylvania

Non-AHP Friendly States

California New York Vermont

* AHPs are permissible, but additional requirements exist

P A T H W A Y 1 R E G U L A T O R Y O V E R V I E W

© MERCER 2019 7

M A R K E T A P P E T I T EC A R R I E R P E R S P E C T I V E / R E Q U I R E M E N T S

• Bona Fide Association

• Concentrations in AHP favorable states

• Employer members with 2-100 lives

• No “Look Through” regs

• ≈2,500 eligible employees per state

• Strong history of marketing programs to members

• Traditional small group offering

• Adjusted Community Rating applies

• Strong affinity to existing Association or GPO

• Only available option in CA and NY for new health plans

• Highly efficient technology driven experience

A Combination of AHP and Affinity is Optimal

Decisions

AffinityAHP

© MERCER 2019 8

Require a minimum of 2 enrolled lives

• California• Maryland• Texas

• Oregon• Rhode Island

Require a minimum of 5 enrolled lives

• Delaware• Florida• Georgia• Illinois• Massachusetts

• Maine• Michigan• Minnesota• North Carolina• New Hampshire• Ohio

• Pennsylvania• Tennessee• Virginia• Vermont*• Washington

* VT offering is for dental, vision and life only, no medical

C O M I N G S O O N ! L A , O K

M E R C E R A F F I N I T Y S M A L L G R O U P P H A S E I

© MERCER 2019 9

M A R K E T I N G

M A R K E T L E V E R A G E & C O S T

U N D E R W R I T I N G & A D M I N

C O M P L I A N C E

I N N O VAT I O N

M E M B E R E X P E R I E N C E

T H E S T E P S T O B U I L D I N G A S T R O N G A H PM E R C E R ’ S B E S T P R A C T I C E B U N D L E

© MERCER 2019 10

•Personalized offers•Brochure fulfillment•Print and production and quality control

•Post-production audit and reconciliation

S T R O N G M A R K E T I N G A N D S A L E SK E Y T O V I A B I L I T Y

Broad Delivery Network

Member Experience Marketing Capabilities

• Provide a knowledgeable and experienced customer service staff to assist members with complex products including multiple coverage options

• Prompt and personalized customer service for quotes and policy purchases, as well as coverage and claims inquiries

• Needs-based cross selling via experienced and licensed salaried representatives

Advertising

Direct Mail

Email Marketing

Policyholder Services

Telemarketing

Web Marketing

•Campaign tracking•Results and reporting

•Creative direction•Copywriting•Creative design•Versioning/personalizing

•Develop long-term and annualmarketing plans

•Implement research/prior learning•Recommend products, incentives, processes and channels

Web Email Direct Mail

Landing Pages Fulfillment Paid Search

Advertising Banner AdsConvention Attendance

•Direct response modeling

•Profiling•Response trend analysis

•Strategic analysis

Data-Driven Analytics Leverage Sales Agents

Consultative Model

Service to Sales

Member contacts service center for assistance

Service specialist deliversoutstanding service and looks

to add more value

Data driven analytics presentsnext best offer screen pop to

service specialist

Service specialist presentsoffer and transfers to licensed sales agent

Licensed sales agentpresents product, quote, andcan issue coverage over the

phone to the member

M A R K E T I N G

© MERCER 2019 11

D I G I T A L M A R K E T I N GC O M M U N I C A T I O N S

Engage customers on mobile devices,

including notifications for critical deadline (Open Enrollment)

S M S T E X T

A D I G I TA L P R O G R A M M AY I N C L U D E F I V E K E Y C H A N N E L S T O S U P P O R T E X PA N D E D C O M M U N I C AT I O N S T O C U S T O M E R S

Generate awareness of plan offerings on channels customers

are using —Facebook

F A C E B O O K

Offer a new externally facing mobile

optimized site with refreshed content to

communicate value of benefits and offers

accessible solutions for enrollment

W E B S I T E

Deliver direct communications to

customers with a new, refreshed email look

and feel

E M A I L

Engage customers on mobile devices,

including notifications for critical deadline (open enrollment)

S M S T E X T

Remind users to revisit the plan

offerings website to maximize awareness

and enrollment

O N L I N ER E M I N D E R S

M A R K E T I N G

© MERCER 2019 12

A N I N N O V A T I O N C A S E S T U D YR E V E R S A L O F A T R A D I T I O N A L P A R A D I G M

• Traditional approaches to

quality/price/expert opinion

driven by the

employer/sponsor

• Communications/incentives

designed to support usage:

extremely poor results,

engagement 1% ‒ 6%

• ROI diluted due to extremely

poor engagement + cost

• 2 decades: no substantial

change

S I T U A T I O N / H I S T O R Y

• Created a bundled package of services including

quality/price/expert opinion

• Offered these services as a voluntary benefit, employee pay all

• Enrollment exceeded 16% in year one with very little recidivism

in year two, no cost to employer, improved ROI

CH

AN

GE

TH

E

PA

RA

DIG

M!

I N N O V A T I O N

© MERCER 2019 13

Risk Management

Mercer’s Principles of Effective AHP Governance TM

Set Direction MonitorImplement

Effectivecommittees

Writtenplan

policiesAppropriate

accountability

Rigorous oversight and

monitoring Effectiveinformation

flow

K E E P I N G Y O U C O M P L I A N TG O V E R N A N C E — P E A C E O F M I N D

C O M P L I A N C E

© MERCER 2019 14

A S S O C I A T I O N U N D E R W R I T I N GP R O P O S A L R E Q U E S T S

Ease for requesting a quote is essential to the success of the

program

Simple collection of basic underwriting information supports rate/quote

development


© MERCER 2019 15

C L I E N T / M E M B E R A D M I NA D D I N G E A C H C L I E N T / M E M B E R


Mercer will follow this intuitive step by step flow to provide the necessary data to build each plan• Client Profile• Benefits• Plans• Rates• Life event Rules• Employee Data• Account Structure

© MERCER 2019 16

C L I E N T / M E M B E R A D M I NA D D I N G C L I E N T S & E M P L O Y E E S


The ability to quickly & accurately build and load

member organizations maintains growth

© MERCER 2019 17

T E C H N O L O G Y & A D M I NM E M B E R S H O P P I N G

M E M B E R

E X P E R I E N C E

• Creates “Choice for theMember”, a keycomment of satisfactionin plan offerings and akey aspect for positiveretention

• Includes GuidedShopping tools to helpthe consumer select themost appropriate planthat fits their familyneeds

• Backed up withcomplete Chatcapabilities

© MERCER 2019 18

T E C H N O L O G Y & A D M I NM E M B E R S H O P P I N G

M E M B E R

E X P E R I E N C E

Presenting Options identifying “Best Match”

Guided Shopping questions support plans offered or

highlighted

© MERCER 2019 19

M E R C E R F I N A N C I A L R E S U L T SC O N S I S T E N T A N D S U S T A I N A B L E

M O R E I N F O R M E D

E M P L O Y E E S

C A R R I E R A N D N E T W O R K

O F F E R I N G S

P U R C H A S I N G P O W E R A N D

B U Y I N G C O A L I T I O N S

I M P R O V E D C A R E

M A N A G E M E N T

D E F I N E D C O N T R I B U T I O N

1Source

12014 through 2019 Mercer Marketplace 365 medical plan rate and enrollment data; Percentage CDHP represents standard deductible options only2Mercer National Survey of Employer-Sponsored Health Plans, 2018

3Cumulative over 5 years compared to the national average. Changes to benefit structures and employer contributions may be necessary and employer specific results may vary.

8.5%Average first

year employer savings1

$1,100Average enrolled

employee savings1

2.6%Average renewal cost

increase versus national average of 6.1% before and

4.4% after plan changes1

64%Employees enrolled

in HDHPs versus 37% national average1, 2

$2.5BClient savings since Mercer Marketplace

365+ inception3

© MERCER 2019 20

N E X T S T E P SA P H A S E D A P P R O A C H

Phase I

• Strategy and Compliance• Survey & Data Collection• Carrier Selection

Phase II

• Marketing to Member Organizations• Purchase and Configuration• Employee Enrollment• Day to Day Administration

GO – NO/GO

© MERCER 2019 21

Services provided by Mercer Health & Benefits LLC.

What A Long, Strange Trip: Legalized Weed & Workplace Rules

KEVIN PAUL assists employers with everything from hiring to retiring. He drafts personnel policies and employment agreements and guides employers through the termination process. Kevin also provides advice on compliance with federal and state wage and hour regulations. Much of Kevin’s time is devoted to helping employers of all sizes and kinds avoid discrimination charges and respond to government audits and administrative complaints. Kevin is a founding member of the Dairy Farmers of America Farm Labor Team, which provides compliance education and support to producers around the country.

The State of Weed

A Curated Summary of State Laws Regulating the Use of Marijuana

as of

September 2019

Please use this as a guide for asking questions of your legal counsel if you’re wondering who can do what where;

particular state marijuana regulations change frequently.

In General:

■ 11 States + D.C. have declared both medical and recreational use of marijuana legal.

■ 22 States have declared only medical use of marijuana legal.

■ 14 States have declared only the medical use of low-THC marijuana legal.

■ 3 States (Idaho, Nebraska & South Dakota) have not adopted any form of marijuanalegalization legislation.

NCFC Conference Attendee States:

ALABAMA: Since 2014, Alabama has permitted seizure patients with a prescription from a licensed physician to obtain and use low-THC marijuana extracts. Legislation adopted in June 2019 creates a commission to study the effects of medical marijuana and recommend legislation for the 2020 legislative session. The Medical Cannabis Study Commission met for the first time in August 2019.

CALIFORNIA: Proposition 215, adopted by voters in 1996, made California the first state to declare medical use of marijuana to address any chronic or persistent medical symptom legal. Proposition 64 subsequently made recreational use of marijuana legal commencing in 2018.

COLORADO: Three hundred days a year of sunshine, bicycles, beer & weed. What’s not to love? On many fronts, Colorado led the way in the legalization and regulation of marijuana

2

cultivation, distribution, and use. Today, both medical uses and recreational uses of marijuana are considered legal. During the 2019 legislative session, the General Assembly passed bills permitting home delivery of marijuana products and the operation of social cannabis lounges. Awesome, Dude...

IOWA: Iowa began permitting use of low-THC cannabis oil to control epilepsy symptoms in 2014. In 2017, the State approved a measure that established a list of illnesses and syndromes for which a patient may use low-THC cannabis. As of December 2018, adult residents of Iowa with the required medical certification may obtain low-THC cannabis oils, capsules, and topical products from five state-licensed dispensaries.

IDAHO: Idaho is one of three states that have not addressed marijuana legalization. A ballot initiative that would legalize medical use of cannabis has been approved for circulation in an effort to secure a place on the 2020 general election ballot.

ILLINOIS: Medical use of marijuana became legal in 2013. On January 1, 2020, recreational use of marijuana will also become legal. Illinois will, further, expunge the criminal records of nearly 800,000 people convicted of possessing 30 grams or less of marijuana.

KANSAS: Commencing in July of 2019, Kansas opened the door to medical use of marijuana, but just barely. Senate Bill 2019-28 creates an affirmative defense to prosecution for profoundly ill people who possess and use low-THC cannabis oils. As all cultivation of marijuana for human consumption is prohibited by the State, Kansans certified to use cannabis oil must obtain it elsewhere.

MICHIGAN: Michigan presently permits both the medical and recreational use of marijuana.

MINNESOTA: Minnesota has permitted the medical use of marijuana for a list of qualifying conditions since 2014. The State tightly regulates the cultivation of marijuana and does not permit recreational use.

MISSISSIPPI: Only people with intractable epilepsy may possess and use low-THC cannabis oil obtained from the University of Mississippi. Several ballot initiative efforts to create broader legal access to marijuana have been unsuccessful.

NEBRASKA: Nebraska is among the three states that have not made any legislative move toward legalization of marijuana possession or use. A campaign to put a ballot initiative that would permit medical use of marijuana on the 2020 general election ballot is underway.

3

OHIO: Ohio declared medical use of marijuana for qualifying conditions to be legal in 2016. An initiated constitutional amendment – the Marijuana Rights and Regulations Amendment -- would have broadly legalized possession and use of marijuana, however it failed to make the 2019 ballot.

OKLAHOMA: In 2018, the approval of Oklahoma State Question 788 legalized cultivation, distribution, possession, and use of marijuana for medical purposes by those who have obtained a medical marijuana license based upon the recommendation of a licensed physician.

TENNESSEE: Tennessee has adopted very limited, statutory permission for patients with intractable seizures to obtain low-THC cannabis oil outside the state for use within the state.

TEXAS: Texas permits patients suffering from a limited list of qualifying conditions to obtain and use very-low THC cannabis oil upon the prescription of a physician. Because physicians cannot lawfully prescribe a Schedule I controlled substance, the medical marijuana program is all but unworkable. Harris County, home of the City of Houston, has implemented a diversion program that effectively decriminalizes possession of small quantities of cannabis. The State’s 2019 legislation permitting the cultivation of hemp included a definition of marijuana that has created confusion because crime labs are typically not capable of identifying THC concentrations at very low levels.

VIRGINIA: As of March 2019, Virginia broadly permits medical use of limited-THC cannabis products. The State does not permit recreational cannabis cultivation, distribution, or use.

WASHINGTON: Washington has long permitted the medical use of marijuana, and now broadly permits recreational use as well.

WISCONSIN: Like Texas, Wisconsin has adopted an effectively unworkable medical marijuana policy that requires a patient wishing to obtain and use low-THC cannabis oil to first secure a physician’s prescription. Cultivation and distribution of marijuana for human consumption is prohibited.

What ALong, Strange

Trip.

Range

Marijuana Tax Actof 1937

Controlled Substances Actof 1970

��

�� ! ��"�#��

Drug Free Workplace Actof 1988

SEPTEMBER 2019"Approximately 1 in 10 people

who use marijuana will become addicted. When they start before age 18, the rate of addiction rises to 1 in 6."

U.S. Substance Abuse & Mental Health Services Administration

On The Other Hand. . .

1970s: Texas, Oregon, and Other States Begin Decreasing

Penalties For Possession & Use.

CALIFORNIA1996 / Prop 215

“The Compassionate Use Act”Exempts Medical Use of

Marijuana For Severe, Acute, or Chronic

Illness FromCriminal Prohibitions.

2008:~15 States HadSome Form of

Medical MarijuanaStatute or Amendment.

U.S. DOJ2009: Ogden Memorandum

2013: Cole Memorandum

We won’t mess with yous if ya

stays outta trouble…

SEPTEMBER 2019

■ 11 States + D.C. have declared both medicaland recreational use of marijuana legal.

■ 22 States have declared only medical use ofmarijuana legal.

■ 14 States have declared only the medical use oflow-THC marijuana legal.

■ 3 States have not adopted any form ofmarijuana legalization legislation.

And If That’s Not Weird

Enough. . .

UNITED STATES ATTORNEY GENERAL

2018 Farm Bill“Hemp is A-OK.”

XOXO,Senator Mitch

CANNABIS

1. MARIJUANA2. HEMP

“CBD”

CBD(Cannabidiol)

+

THC(Tetrahydrocannabinol)

2018 Farm Bill

Hemp ≤ 0.3%THC

Exempt From Schedule 1

Journal of the American Medical Association

November 7, 2017

Research Letter:

84 On-Line CBD Products;

Product Labels Over-Reported CBDand Under-Reported THC.

DRUG FREE WORKPLACE

■ Zero Tolerance for Use of Illegal Drugs at Work.

■ Pre-Hire Drug Screen.■ Reasonable Suspicion

Testing.■ Discipline Up To &

Including Termination.

Reasonable Suspicion?

1. 15 Years with the Co-op.2. Highest Rated Performance

in the Department.3. Elected Chair of Employee

Engagement Committee.4. Member of Three Protected

Classifications, including Disability.

Q: Reasonable Suspicion?

A: It Depends.

Does The State Protect Employees From

Marijuana Related Discipline?

ILLINOISNo employer may penalize a person

solely for his or her status as a registered qualifying [medical marijuana] patient or

caregiverunless

failing to do so would result in loss of a monetary or licensing-related benefit

under federal law or rules.

…loss of a monetary or licensing-related benefit under federal law

or rules.

FEDERAL DRUG FREEWORKPLACE ISSUE?

FEDERAL DRUG FREE WORKPLACE ACT

■ Mandatory Testing?■ Zero Tolerance?■ Off-Duty “Use”?

TESTING LIMITATIONS

■ Oral Test Can Identify Recent Use, But Not Concentration.

■ Blood & Urine Tests Can pick Up Use That Happened Weeks Prior.

■ Not Really Possible To Tie Hot Results To Current Impairment

Absent Signs & Symptoms.

ILLINOIS CANNABIS REGULATION & TAX ACT

■ Workplace Safety need not be Diminished.


■ Permits “reasonable” zero tolerance & testing policies enforced without discrimination.


■ Amends Right to Privacy in the Workplace Act, such that off-duty use that results in failed test likely can be used as a basis for discipline.


■ Permits employers to act on good faith belief that an employee is impaired while at work; requires the employer to afford the employee an opportunity to contest that belief.


■ Provides a list of reliable indicators of impairment(e.g., slurred speech; lack of balance).


■ No Private Right of Action.

EMPLOYEE PROTECTIONS

AZ, AR, CT, DE,IL, ME, MA, MN, NV, NJ, NY, OK,

PA, RI & WV

NEVADAProhibits Refusing To Hire

Owing To Hot Pre-Hire Test,Except

Safety-SensitiveList of Occupations.

WHEW!I’m Sure Glad

THAT’sOver…

1. 15 Years with the Co-op.2. Highest Rated Performance in the

Department.3. Elected Chair of Employee

Engagement Committee.4. Member of Three Protected

Classifications, including Disability

(PTSD + Chronic Pain).

“I Need To Be Exempted From Your Drug Free Workplace

Policy As A Reasonable Accommodation That Will

Permit Me To Continue Performing The Essential

Functions Of My Position.”

Early On, Court Decisions All Concluded That Use of A

Federally Prohibited Substance Couldn’t Be A “Reasonable”

Accommodation.

But…

Barbuto(Massachusetts 2017)

Not So Fast.The Employer Needs To Undertake

The Informal Interactive Process.

And…

Making An Exception To A Drug Free Workplace Policy Might Well Be Reasonable Under The Circumstances.

You Can’t Just Assume That It Wouldn’t Be.

And Now,The Takeaways

1. Know What Protections Exist For

Employees In Your State Or States.

2. Revisit Your Drug Screening

Policy;If You Have One,

Know Why.

3. If You Have One,And Want To Keep It,

Think AboutRemoving THC.

4. If You’re Going To Test, Think

About Testing For Recency.

5. Have That Talk About Off-Duty

Use And What It Can Mean Under Your

Policy.

6. Create A List OfImpairment Indicators

And Train Managers On It.

7. Analyze Job Descriptions

For True Safety Issues.

MAYBE ADD “ABLE TO WORK SAFELY AND WITHOUT IMPAIRMENT” AS AN

ESSENTIAL FUNCTION.

8. Think About How You Want To Handle An

Accommodation Request Before You

Get One.

9. If You Make An Accommodation,

Write Out The Terms.

10. Call For Help.

2019 Legal Update for HR Professionals

Kristy Albrecht Shareholder Fredrikson & Byron, P.A. Kristy is a shareholder in Fargo, ND and a member of the Employment & Labor, Litigation, Transportation and Appellate Groups. She advises employers on a variety of employment law issues, including hiring, firing, discipline, employee leave laws, employee handbooks, drug and alcohol policies and separation agreements. Additionally, Kristy advises and defends motor carriers on DOT issues, particularly focusing on compliance and audit work under the regulations of the Federal Motor Carrier Safety Administration. An experienced litigator, she represents clients before state and federal agencies and in state and federal court on various types of claims, such as workers’ compensation (WSI), unemployment insurance, discrimination, harassment, retaliation, wrongful termination and trade secrets violations. Kristy received her Bachelor of Arts in Music Education/Piano Performance and her Juris Doctorate from the University of Iowa College of Law.

1

2019 LEGAL UPDATE FOR HR PROFESSIONALS1

Kristy Albrecht Fredrikson & Byron P.A.

October 3, 2019 [email protected]

D: (701)-237-8201 O: (701)-237-8200

I. INTRODUCTION

Employment law is always evolving, and because it involves a significant aspect of people’s lives, many of the changes reflect evolving political considerations and societal norms that may vary geographically. At the federal level, we are not seeing much in terms of new legislation; the changes there occur through executive orders, changes in regulations, and interpretive case-law. At the state and local level, we see a trend of legislation addressing everything from wage and hour laws to leave laws. All of these changes present challenges to employers, particularly employers who have large footprints and face a patchwork of federal, state, and municipal laws. The goal of this presentation is to give HR Professionals a “heads up” on the various issues that are evolving and may require attention as to employer policies and practices.

II. DISCRIMINATION LAWS

A. ADEA (AGE DISCRIMINATION)

The Age Discrimination in Employment Act (ADEA) has been interpreted a little more narrowly than Title VII, because of some difference in the language between the two statutes. For example, the Supreme Court held a few years ago that ADEA plaintiffs must prove “but for” causation, while Title VII plaintiffs need only prove that discrimination was a substantial factor in the employment decision. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).

The Seventh Circuit Court of Appeals recently issued a decision further narrowing the scope of the ADEA Kleber v. CareFusion Corp., 914 F.3d 480 (7th Cir. 2019) (en banc). In Kleber, the employer had advertised that it would consider only applicants with between three and seven years of experience. The plaintiff alleged that the seven-year cap on experience effectively had a disparate impact on older workers, in violation of the ADEA. Based on statutory language, the Seventh Circuit held that the ADEA does not authorize applicants to bring disparate impact claims against a prospective employer. Other circuits have not addressed this issue.

Best Practice: This holding applies only to disparate impact claims, that is, claims involving neutral policies that allegedly have a disparate impact on individuals in a protected group (here, older workers). By contrast, ADEA disparate treatment claims, that is, claims alleging intentional discrimination, are available to applicants as well as employees. This different is based on the different statutory language for the two types of claims. Employers should focus on qualifications when hiring, not any protected classification of the applicants.

1 The material contained herein is intended to be educational. It does not constitute legal advice.

2

B. HARASSMENT/RETALIATION CLAIMS

Hurd v. City of Lincoln , No 4:16-CV-03029 (D. Neb. Feb. 19, 2019). A fire captain reported that a Kurdish female firefighter recruit who was from Iraq was being subjected to harassment. He believed that harassment was the result of her gender and national origin. He alleged he was retaliated against for raising the issue. He filed a charge with the EEOC and state agency, and then allegedly was subjected to more retaliation, including being passed over for a promotion and being relegated to less desirable work assignments. A jury awarded him $1.2 million.

Best practice: The lesson here is that we are seeing larger jury verdicts in harassment and retaliation cases. Know that workers who stand up for others against harassment are protected from retaliation. When receiving any complaint, employers should do a thorough investigation, take any needed remedial measures, and take measures to avoid any retaliation. If any adverse action is to be taken against the complainant, we recommend some careful risk management. Is there sufficient documentation supporting the adverse action? Have others who are not in the protected class received the same adverse action under similar circumstances? Consult with counsel on these issues.

C. TRANSGENDER AND SEXUAL ORIENTATION CASES

The transgender and sexual orientation cases are still percolating through the courts in various contexts, and these cases frequently involve not only discrimination issues, but also the right to express and follow religious convictions. The results are mixed, depending on the context of the cases.

In a school case, the Supreme Court recently declined to hear a privacy-rights claim brought by a conservative group against a school district that has a policy allowing transgender students to use the bathrooms of their choice. The Third Circuit ruled that the policy is legal and that ruling will now stand. Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3rd Cir. 2018).

In a public accommodation case, the Supreme Court once again punted a case involving business owners’ right to deny services to LGBT people for religious reasons. Recall that approximately a year ago, the Court vacated an Oregon appellate decision, the Masterpiece Cakeshop case, where the bakery owners refused to create a custom wedding cake for a gay couple based on religious convictions. 138 S.Ct. 1719 (2018). This remand was narrowly decided, based on a procedural hostility towards religion, and the Court offered no comment on the merits of the case.

Later that year, the Court remanded a case from Washington state involving a similar dispute, simply instructing the lower court to review the Court’s decision in the Masterpiece Cakeshop matter. Arelene’s Flowers, Inc., v. Washington, 138 S.Ct. 2671 (2018). So, we have no new guidance in the public accommodation setting for the LGBTQ matters, but we know that states agencies need to have a neutral procedure that is not hostile to religious rights.

In the employment setting, the Supreme Court has agreed to consider three cases involving LGBTQ rights this term:

• EEOC v. R.G. & R.G. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) (certiorari granted, U.S., No. 18-107) (transgender case);

3

• Zarda v. Altitude Express, Inc., 883 F.3d 100 (7th Cir. 2018) (certiorari granted, U.S. No.

17-1623) (sexual orientation case);

• Bostock v. Clayton Cty. Bd. Of Comm’rs, 894 F.3d 1335 (11th Cir. 2018) (certiorari granted, U.S., No. 17-1618) (sexual orientation case).

In these cases, the plaintiffs argue that an employer who discriminates because of sexual orientation or transgender status also discriminates “because of sex,” which is the language of Title VII. Two courts of appeals, the Sixth and Seventh Circuits, held that Title VII protected employees against discrimination based on sexual orientation or gender identity. The Eleventh Circuit, however, held that Title VII does not include sexual orientation protection. We believe this will be a closely split decision by the Supreme Court, and we are watching Justice Roberts, who many believe will be the deciding vote in these cases.

Best practice: Besides federal law, employers must comply with state-law requirements, and at least 21 states and hundreds of counties and cities have passed laws protecting against transgender and/or sexual orientation discrimination. Employers should craft policies compliant with the toughest applicable jurisdictions. Moreover, employers should work generally at creating respectful workplaces for all their employees, which includes not tolerating any bullying of employees, regardless of whether the bullying would be illegal under any federal or state law. This approach will aid in recruiting, will reduce turnover, will improve morale and job satisfaction, will improve productivity, and ultimately serve to improve the bottom line.

D. PREGNANCY AND PARENTAL LEAVE POLICIES

EEOC v. Estee Lauder Co., No. 2:17-CV-03897-JP (E.D. Pa. July 12, 2018). In this case, the EEOC alleged illegal sex discrimination because Estee Lauder policies provided for 6 weeks of leave for new mothers and only 2 weeks of leave for new fathers. The EEOC also alleged that new fathers were provided with fewer benefits than new mothers upon returning to work.

The parties ultimately settled, and the court entered a Consent Decree under which, among other things, the employer paid $1.1 million to a class of male employees who had received less paid time off than new mothers.

Best practice: Provide similarly situated individuals with similar benefits. That means that new fathers and new mothers should be viewed on equal footing. You might consider distinctions based on medical differences (e.g., more time for new mother recovering from C-section), but think through the rational differences between employees before setting benefits distinguishing between them.

E. ADA (DISABILITY DISCRIMINATION)

ADA issues continue to consume major amounts of time and effort for employers (i.e., HR Departments) and their attorneys, and the numbers of cases filed under the ADA continues to rise. The ADA is a difficult statute to navigate, in part because of the many ways ADA issues arise in the employment context.

4

EEOC v. BNSF Ry. Co., 902 F.3d 916 (9th Cir. 2018), as amended (Sept. 12, 2018). This case involved a job applicant whose offer was contingent upon satisfactory completion of a medical review. The Medical review revealed a back injury from four years before, but the applicant’s providers (doctors and a chiropractor) all determined he had no current limitations. The employer requested that the applicant submit an MRI of his back at his own cost and told the applicant that if he failed to have the MRI, he would be deemed to have declined the offer of employment. In other words, the employer would revoke its offer. The EEOC sued alleging that the employer had regarded the man as disabled and imposed an expense on him based on that perceived disability. The Ninth Circuit Court of Appeals agreed.

EEOC v. Dolgencorp, LLC, 899 F.3d 428 (6th Cir. 2018). This case involved a failure to accommodate claim. A cashier who was diabetic requested to keep juice nearby in case of a low blood sugar episode. The employer refused. The employee took juice from the store cooler before paying for it during two episodes, and the employer fired her. The jury found that the employer had failed to accommodate the employee, and the Sixth Circuit Court of Appeals agreed, explaining that the employer had failed to engage in the interactive process and dismissing as irrelevant that alternative solutions (such as glucose tablets or candy) might have worked.

Best practices: Train your supervisors to report to HR any notice (oral or written) of disability issues that may affect employment performance, and further train them not to make negative comments to the individuals who seek accommodation. When in doubt on how to handle a health or injury issue with an applicant or an employee, seek guidance from counsel. The health or injury issue may trigger issues under a number of statutes (e.g., FMLA, ADA, and WC), each with its own requirements.

F. PROCEDURAL REQUIREMENTS FOR DISCRIMINATION CLAIMS

Fort Bend County v. Davis, 587 U.S. ___ (2019). Lois Davis filed a charge with the EEOC against her employer, Fort Bend County, alleging sexual harassment and retaliation. While the charge was pending, Davis asked for, and was denied, time off to attend a church service. She went anyway. The County terminated her employment for failing to report to work. Davis then attempted to supplement her EEOC charge regarding the termination issue. She checked the boxes on the EEOC charge form for “discharge” and “reasonable accommodation”; however, while she wrote “religion” in the “Employment Harms and Actions” section of the form, she failed to check the box for “religion.”

Davis eventually received a right-to-sue letter and filed suit in federal court, alleging religious discrimination and retaliation for reporting sexual harassment. The federal court granted the County’s summary judgment motion on both claims. On appeal, the Fifth Circuit Court of Appeals affirmed summary judgment on the retaliation but reversed and remanded on the religious discrimination claim, finding a question of fact precluding dismissal.

On remand, the employer argued for the first time that the court lacked jurisdiction on the religious discrimination claim because Davis had failed to exhaust her administrative remedies when she failed to specify a religious discrimination claim on her EEOC charge. The district court agreed and dismissed the claim. On appeal (again), the Fifth Circuit reversed, stating that

5

the exhaustion requirement was prudential (not jurisdictional) and had been waived by the County.

Supreme Court took the case and held that the exhaustion requirement for Title VII claims is, indeed, prudential, not jurisdictional. Therefore, a defense based on a plaintiff’s failure to exhaust her claims can be waived by defendants who failed to raise the issue early in the litigation. This is consistent with the Court’s rulings on other procedural requirements of Title VII, including the numerical threshold requirement and the time limit for filing a charge.

Best practice: Be aware that discrimination claims may implicate important, procedural defenses that must be raised in the Answer or at least early on in litigation, lest they be waived. You want to retain experienced employment litigation counsel who will know these defenses and timely raise them.

III. LEAVE LAWS

A. FMLA LEAVE DEVELOPMENTS

Enacted in 1993, the Family and Medical Leave Act (FMLA) has now been effective for more than 25 years. It is implemented with many detailed regulations regarding what employers can and must do to effect the protections of the FMLA. Some questions have persisted, however, and the DOL recently provided new guidance on a couple of those questions.

First, the DOL has answered the question of whether workers can exhaust paid leave options before taking FMLA leave. In an opinion issued in March of 2019, the DOL stated that businesses cannot let workers take paid sick time before they tap into their allotment of FMLA leave. Employers must start running the clock for the 12 week of FMLA as soon as they have determined that the employee qualifies for leave under the statute. This does not mean that employees cannot use their PTO or vacation during their FMLA leave, and in fact many employers require employees to do that. It simply means that the FMLA clock must start running right away. U.S. Department of Labor, Wage & Hour Opinion Letter dated March 14, 2019. We note that this opinion letter is inconsistent with 9th Circuit ruling in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014).

Second, the DOL recently provided guidance stating that an otherwise healthy worker covered by the FMLA qualifies for FMLA leave with a serious health condition if the worker voluntarily donates an organ. Note that the employee’s situation involves inpatient care and/or continuing treatment, both of which satisfy the serious health condition standard. U.S. Department of Labor, Wage & Hour Opinion Letter dated August 28, 2018.

B. STATE AND LOCAL LEAVE LAWS

While we hear from time to time of bills in Congress, we have seen no notable changes to federal law in terms of leave laws. We have the FMLA and the ADA, both of which require employers to make leave available in certain situations. However, those laws have been in play since the early 1990s.

The situation at the state-law level is a different story. States and municipalities have been very active in enacting sick and safety leave laws. According to the National Partnership for Women

6

& Families, as of June 2019, seven states and Washington, D.C. have passed some form of paid family and medical leave legislation. In some states, employers face not only a state law that demands more than federal law, but also municipal ordinances with specific requirements.

The content of these state and local laws varies, and employers may be subject to inconsistent standards. Some laws require some employers to provide paid leave for employees who are dealing with their own or a family member’s illness. Some laws require leave, but it can be unpaid. Some laws also include paid time off for victims of domestic violence, sexual assault, and/or stalking. The term “family member” is defined in each state, and the size of the employers subject to the laws varies.

To address these inconsistencies, a few states have enacted state preemption laws to prevent municipalities from creating different standards than are in effect under state law. However, the constitutionality of the preemption laws will be challenged as well. Overall, these various state and municipal laws are evolving and subject to interpretation by agencies and the courts.

Best practice: Work with your attorney to assure compliance with the state and local leave laws, as well as the FMLA and ADA. Your handbook should reflect the standards under which you are operating, even if you need to have some addendums for particular state or municipal laws.

IV. CONTRACT ISSUES

A. ARBITRATION AGREEMENTS

Last year, the Supreme Court upheld mandatory employment arbitration agreements in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018). The Court explained that enforcing such agreements did not run afoul of the substantive right to engage in concerned activities under Section 7 of the NLRA. The Court followed up this year with two additional decisions clarifying the law regarding employment arbitration agreements.

In the first case, the Court held that employers cannot force interstate truckers into arbitration, because the Federal Arbitration Act contains language excepting from its terms “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” New Prime, Inc. v. Oliveira, 139 S.Ct. 532 (2019) (quoting Section 1 of the Federal Arbitration Act). Thus, employers do not have authority under the FAA to force interstate truckers to arbitrate their claims.

In the second case, the Court found that where an arbitration agreement is silent as to class actions, the contract should be read to be a consent to arbitrate class actions. Thus, in this case, the employer was able to obtain a dismissal of the case in court, in favor of arbitration pursuant to the agreement to arbitrate, and the employees had no right to pursue class arbitration. Lamps Plus, Inc. v. Varela, 139 S.Ct 1407 (2019). Relying on this holding, some ALJ rulings from arbitration are being overruled. For example, a case a federal district court in Wisconsin vacated a mortgage workers’ $10 million class arbitration win for 174 employees, because the arbitration agreement was held to bar class actions. Herrington v. Waterstone Mortgage Corp, No. 11-cv-779-bbc (W.D. Wis. Apr. 26, 2019).

7

Following Epic Systems, we are seeing other favorable for employers in arbitration matters. One court held in April that a nurse was bound to her employer’s mandatory arbitration agreement, even though she had refused to sign it. Hoffman v. Compassus, 2:18-CV-00776 (E.D. Penn. 2019). In a split decision in August, the NLRB ruled based on the Epic Systems decision that employers can change mandatory arbitration agreements to bar workers from opting into class actions in response to being sued, and employers further can threaten to fire workers who refuse to sign the agreements. Cordua Restaurants Inc., 16-CA-160901, 16-CS-161380, 16-CA 170940, and 16-CA-173451 (Aug. 14, 2019).

Practical reality: Arbitration agreements are a mixed bag. They can assist employers in avoiding expensive collective/class actions and force employees to bring their claims individually – a big risk management measure. However, employers should consider that arbitrators rarely grant motions to dismiss such that claims are more likely to require the full hearing before the arbitrator will make a decision, and arbitrator decisions are very difficult to appeal as compared to decisions by district courts. Finally, the plaintiffs’ bar has strategically turned to piling on the individual claims with arbitrators, such that instead of one action handling all 100+ potential individual claims and getting a ruling for all employees, the employer may need to litigate the different individual actions and the results in those claims will not be binding on any other potential plaintiffs’ claims. Notably, under the AAA rules, the employer pays for all the arbitration fees.

Best practice: The biggest risk for employers as to collective or class actions concerns payroll and worker classification practices. Audit those practices on a regular basis, and work with your attorney so that you have managed your risks. This should include an evaluation of the costs and benefits of an arbitration agreement when applied to your business realities.

B. SEPARATION AGREEMENTS

We are seeing new state laws limiting or prohibiting the use of confidentiality terms (sometimes referred to generally as Non-Disclosure Agreements (“NDAs”)) in employment contracts, including settlement agreements. These state laws prohibit any terms that would prevent employees from speaking out on discrimination, retaliation, or harassment issues that they claim to have endured at work. Some states with recent enactments include California, New York, and New Jersey. Additionally, the Federal Tax Cuts and Job Act prohibits business expense deductions for (i) any settlement or payment related to sexual harassment or sexual abuse, and (ii) attorney’s fees related to the settlement. 26 U.S.C. § 162(q).

Best practice: If employers have employees in states or municipalities that prohibit or limit the use of NDAs, the specific statutory terms must be considered before entering into settlement agreements with confidentiality terms. Employers should also consult with counsel regarding the tax implications of Section 162(q). Additionally, we recommend against using old templates for separation agreements, because many times, you need different terms for different circumstances. Moreover, the EEOC has instructed in the last few years that our separation agreements must be written in plain language and we must provide certain disclosures.

8

C. EMPLOYMENT AGREEMENTS

In most states, employees are presumed to be “at will” unless the employer and employee enter an agreement otherwise. We caution employers to present offer letters, not contracts, to their employees. The offer letters should be carefully crafted to provide sufficient information for the employment offer, without creating any guaranty of employment for a specific term of employment.

In many states, restrictive covenants are allowed between employers and employees. Employers typically have their employees enter into agreements with non-competition covenants, non-solicitation of business covenants, and non-solicitation of employees covenants While these restrictive covenants are not favored in the law (because they restrain business competition in our economy), they are enforceable in many states if they are drafted properly and supported by adequate consideration.

We are seeing rumblings of some change in the ability to use non-compete agreements. North Dakota and California have been the outliers for years, not allowing such covenants in the employment context except in very narrow circumstances. Recently, however, Washington state has enacted a state law strictly limiting non-compete agreements. For example, the employee must earn more than $100,000 per year, and the duration of the restriction must be no longer than 18 months. Further, if an employer has its employee sign an agreement in violation of the new Washington statute, the employer will have to pay the employee’s attorney fees to have the agreement struck by a court, even if the employer has not sought to enforce the agreement.

Best practice: We caution employers to stay abreast of what appears to be a new area of evolving state law. If employers have employees in one of the states regulating restrictive covenants, they should consult with counsel on how to proceed.

IV. WORKER CLASSIFICATION: INDEPENDENT CONTRACTOR OR EMPLOYEE?

Worker classification is an ongoing challenge for employers and workers. At the outset of the relationship, both parties may want to create an independent contractor relationship, but at some point, that can change, and the worker then wants to be an employee. Additionally, an agency audit can give rise to a dispute regarding worker classification. Work classification errors can implicate many different laws, including: the NLRB, state common-law principles, workers’ compensation laws, unemployment laws, wage and hour laws, and federal and state tax laws.

The standards somewhat differ from state to state, from agency to agency, and from statute to statute. For example, the NLRB recently reinterpreted its standard on the worker classification issue, holding that a group of workers for an airport shuttle company could not form a union because they were independent contractors. The federal Fair Labor Standards Act, however, has a stricter standard than articulated by the NLRB.

The US DOL also recently unveiled new guidance on the worker classification issue in a letter opinion. U.S. Department of Labor, Wage & Hour Opinion Letter dated April 29, 2019. There, it opined on whether workers for an unnamed gig economy platform that connects service providers with clients were employees. The opinion applies the long-standing six-factor “economic realities” test under the Fair Labor Standards Act, but the emphasis in the opinion is

9

much different than how the test was applied in 2015 (during the Obama administration), when the DOL issued a guidance memorandum on the standard. This new interpretation emphasizes the theoretical ability of workers to make entrepreneurial decisions and the workers’ ability to work for other companies, whereas the prior guidance memorandum focused on the actual, day-to-day experience of the workers.

These standards are also evolving at a state level. California, for example, has enacted a statute making it harder to prove workers are independent contractors, and the California Supreme Court recently held that the statute applies retroactively. Dynamex Operations West, Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018).

Note that the parties’ intent does not control the classification under any of the standards. The factors relate to how much control the business is exercising (or can exercise) on the worker and the entrepreneurial aspects of the worker’s business. As a practical matter, we see ongoing challenges from state agencies that have a heightened awareness of worker classification issues, as well as an uptick of collective/class actions filed by plaintiffs’ wage and hour firms.

Best practices: Getting the independent contractor analysis wrong can be a serious (and expensive) problem. Some risks can be managed and minimized in the way you structure the relationship, and some workers simply should not be classified as independent contractors. We recommend consultation with counsel as to classification issues. When working with counsel, we also recommend that considering filing the recent DOL with a note that the employer is relying on this opinion for its classification decision. This will assist in proving good faith reliance on the DOL’s statutory interpretations in opposition to a potential liquidated damages claim.

V. WAGE AND HOUR AND EQUAL PAY ISSUES

A. FEDERAL EQUAL PAY PROTECTIONS

Yovino v. Rizo, 139 S.Ct. 706 (2019). The Supreme Court heard an appeal under the Equal Pay Act (“EPA”), concerning the factors an employer can consider when setting compensation rates. Specifically, the employer had used the female’s prior salary as one of the factors in determining what to pay her. The plaintiff in the case was paid less than her male peers.

When she alleged discriminatory pay based on her gender, the employer alleged that she was not similarly situated because her prior wages were less than the comparator males, and that factor was a legitimate basis supporting her lower pay. The Ninth Circuit Court of Appeals held that the EPA prohibits using prior salary, even in combination with other factors, in setting compensation rates. The Supreme Court granted certiorari but did not decide the case or the merits. The Supreme Court vacated and remanded the decision because the Judge Reinhardt, the judge who had authored the decision, died 11 days prior to the issuance of the decision. More to come!

EEOC v. Maryland Ins. Admin., No. 1:15-CV-01091 (D. Md. Jan. 28, 2019). The EEOC charged that the employer paid three female fraud investigators lower salaries than it paid several male fraud investigators doing the same work. The parties entered into a Consent Decree under which the employer paid significant back damages and liquidated damages.

10

Best practices: The EPA requires that workers be paid similarly for doing the same job, regardless of gender or past pay. Well established research shows that women tend to be paid less than men. While at least some of that difference may be for reasons unrelated to discriminatory bias, using past salaries as a basis for setting compensation may be found to be discriminatory as to women and thus illegal under the EPA. In a similar vein, the EEOC now requires more detailed wage and salary data disclosures, and that data in turn can fuel class actions addressing alleged pay disparities. We recommend auditing pay practices on a regular basis to manage the EPA risks.

B. STATE/LOCAL EQUAL PAY LAWS

Beyond the EPA and other discrimination laws, states are enacting equal pay laws that depart from well-established federal standards to provide more protections to employees. E.g., California (2016); Massachusetts (2016); Maryland (2016); Oregon (2017); Puerto Rico (2017); Washington (2018); New Jersey (2018); Illinois (2019). Some of these state laws lower the standard for comparing individuals. While federal law requires a showing of “equal work,” some state laws require only “substantially similar work” or “comparable work.” Some state laws also depart federal law in not requiring compared employees to be located at the same facility. Other employer defenses are also being eliminated under some of these state laws. Finally, states have been enacting laws requiring certain disclosures and transparency in terms of employers’ wage practices.

Best practices: We recommend that you audit your compensation practices to make sure you have legitimate grounds for the differences in pay scales for your employees. Focus on the legitimate factors in play for the job at hand (e.g., training, seniority, performance evaluations, and skills) and whether those factors are clear enough to support the differences in pay. To the extent you have pay gaps that create risk, you will want to address those issues. Further, work with your attorney to assure that you have complied with any applicable transparency laws under state law.

C. STATE/LOCAL MINIMUM WAGE AND WAGE THEFT LAWS

The federal law on minimum wages, set by the Fair Labor Standards Act, has not changed. However, one of the biggest employment law developments in the past few years is the succession of states and municipalities that are enacting laws making minimum wage hikes. At least 19 states and D.C. have passed minimum wage increases. In the past year alone, four states have signed into law provisions under which the minimum wage will be $15/hour by 2025. And many municipalities are enacting their own minimum wage laws. Some of these state and local laws have carve-outs for small businesses, seasonal employees and farm workers, and others do not.

Further, at a state and local level, we are seeing wage theft laws, which create a number of additional disclosure, reporting, and record-keeping requirements for employers. For example, Minnesota enacted the Minnesota Wage Theft Law, effective on July 1, 2019. That statute requires employers to disclose in writing quite a bit of a number of wage-related information to employees and to get the employees’ written acknowledgement of receipt. The disclosures include, for example, whether the employee is exempt from overtime, and if so, the basis for that determination. The employer must also offer the disclosure to its employees in other languages.

11

Best practice: Work with your attorney to assure that you are staying abreast of evolving wage laws in all the jurisdictions where you have employees working. Making sure you do things correctly on the front end may avoid expensive class action litigation and agency fines and penalties when some employee becomes disgruntled.

D. US DOL RULE PROPOSAL (AGAIN) REGARDING EXEMPTION SALARY THRESHOLD

The current salary threshold for the white collar exemptions is $455/week ($23,660/year). That salary was set 15 years ago, in 2004. In 2016, under the Obama administration proposed that the threshold be increased to $913/week ($47,476/year). This amount was set according to the 40th percentile of earnings for full-time salaried workers in the lowest-wage census region in the U.S.

Employers and business groups challenged the rule as too drastic and burdensome on smaller employers, particularly in parts of the country where wages and costs of living are lower. A Texas federal court issued an injunction on the rule just before it was to become effective, and the rule has been stalled out ever since, pending before the 5th Circuit Court of Appeals.

The current DOL, under the Trump administration, has proposed a rule that would increase the salary threshold to $679/week ($35,308/year). This amount has been set according to the 20th percentile of earnings for full-time salaried workers and retail workers in the lowest-wage census region in the U.S. The pending proposed rule also provides for the following:

• An increase in the salary requirement for the “highly compensated employee” from $100,000 to $147,414. The total compensation for a highly compensated employee must include at least $679/week of non-fluctuating salary payments.

• Employers could use non-discretionary bonuses, incentive payments, and commissions to satisfy up to 10% of the salary threshold.

• Unlike the 2016 proposed rule, this rule would not have any automatic increase with inflation. Instead, the DOL proposes a “commitment to periodic review to update the salary threshold.”

• Like the 2016 proposal, this proposed rule does not change the job duties of the exemption tests. Nor does it change the fact that blue collar workers are not exempt.

Importantly, regardless of what the federal rules are, states and municipalities can have more employee-protective wage and hour laws. Employers need to stay abreast of applicable laws and comply with all of them. For example, if an employer has employees in a state that does not recognize the highly compensated employee exemption (e.g., Minnesota), the employer will not be able to rely on that exemption to avoid paying overtime wages under that state’s laws.

Best practice: The proposed federal rule is not law yet, but the DOL has projected that the rule will go into effect January of 2020. If you have not done so recently, we recommend reviewing your exempt classifications with your legal counsel to assure you have properly classified your employees under both federal and state law, and to assure you are ready to comply with the new federal rule when it goes into effect.

67967611 v4

Legal Update For HR ProfessionalsPresented By: Kristy L. Albrecht, Esq.October 3, 2019

Life Of An HR Professional

Scope of Topics for This Legal Update

• Discrimination laws

• Leave laws

• Contract issues

• Worker classification issues

• Wage and hour and equal pay issues

Discrimination Laws: ADEA

• Age Discrimination in Employment Act(ADEA)

• Gross v. FBL Fin. Services, Inc., § 557U.S. 167 (2009)

• Kleber v. CareFusion Corp., 914 F.3d 480(7th Cir. 2019) (en banc)

Discrimination Laws: Harassment/Retaliation• All discrimination laws have harassment

components

• All discrimination laws (and most individualrights laws) have retaliation prohibitions

Discrimination Laws: Harassment/Retaliation (cont’d)• Common theme: Personal and emotional

component

• Trend: Higher jury verdicts

• Hurd v. City of Lincoln, Nebraska, No. 4:16-CV-03029 (D. Neb. Feb. 20, 2019)

Discrimination Laws: Transgender/Sexual Orientation• Doe v. Boyertown Area Sch. Dist., 897 F.3d

518 (3rd Cir. 2018)

• Masterpiece Cakeshop, Lt. v. Colorado CivilRights Comm’n 137 S. Ct. 18797 (2018)

• Arelene’s Flowers, Inc., v. Washington, 138S. Ct. 2671 (2018)

Discrimination Laws: Transgender/Sexual Orientation• EEOC v. R.G. & R.G. Harris Funeral

Homes, Inc., 884 F.3d 560 (6th Cir. 2018)(cert. granted)

• Zarda v. Altitude Express, Inc., 883 F.3d100 (7th Cir. 2018) (cert. granted)

• Bostock v. Clayton County, Georgia, 894F.3d 1335 (11th Cir. 2018) (cert. granted)

Discrimination Laws: Pregnancy and Parental Leave Policies• Discrimination protection goes both ways

• EEOC v. Estee Lauder Co., No. 2:17-cv-03897-JP (E.D. Pa) (July 17, 2018)

Discrimination Laws: ADA

• EEOC v. BNSF Ry. Co., 902 F.3d 916 (9th

Cir. 2018) as amended (Sept. 12, 2018)

• EEOC v. Dolgencorp, 899 F.3d 428 (6th Cir.2018)

Discrimination Laws: Procedural Requirements

• Most defenses can be waived

• Fort Bend County v. Davis, No. 18-525 (S.Ct. June 3, 2019)

Leave Laws: FMLA Leave Developments

• DOL issuing opinion letters again

• DOL Opinion, FMLA2019-1-A (Mar. 14,2019)

• Maria Escriba v. Foster Poultry Farms Inc.,743 F.3d 1236 (9th Cir. 2014)

• DOL Opinion, FMLA2019-1-A (Mar. 14,2019)

Leave Laws: State and Local Leave Laws

• Federal level – no new legislation

• States and localities passing sick and safeleave laws

• Beware: Content varies so compliancerequires careful scrutiny

Contract Issues: Arbitration Agreements

• Epic Systems Corp. v. Lewis, 138 S. Ct.1612 (2018)

• New Prime, Inc. v. Oliveira¸139 S. Ct. 532(2019)

• Lamps Plus, Inc. v. Varela, 139 S. Ct 1407(2019)

Contract Issues: Arbitration Agreements (cont’d)

• Herrington v. Waterstone Mortgage Corp.,No. 11-cv-779-bbc (W.D. Wisc. 2019)

• Hoffman v. Compassus, Civil Action No.180776 (E.D. Penn. 2019)

• Cordua Restaurants Inc., 16-CA-160901,16-CS-161380, 16-CA 170940, and16-CA-173451

Contract Issues: Separation Agreements

• Confidentiality terms/non-disclosureagreements

• Federal Tax Cuts and Job Act, 26 U.S.C. §162(q)

• State laws prohibiting confidentiality terms

Contract Issues: Employment Agreements

• Presumption in most states: At willemployment

• Offer letters should be prepared to preserveat will status

• Other contracts: Restrictive covenants

• Development: Disallowing restrictivecovenants

Worker Classification: Indep. Contractor or Employee?

• Legal implications: workers’ compensation,unemployment, state and federal taxes,other withholding, wage and hour issues,and union issues

• Control is the crux of the analysis; however,the actual standards vary.

Worker Classification: Indep. Contractor or Employee?

• DOL Opinion: DOL Opinion, FLSA 2019-5)(Apr. 29, 2019)

• Dynamex Operations West, Inc. v. Lee, 4Cal. 5th 901 (2018)

Equal Pay: Federal Law

• #MeToo → Increased focus on equal payissues

• Yovino v. Rizo, 139 S. Ct. 706 (2019)

• EEOC v. Maryland Ins. Admin., No. 1:15-cv-01091 (D. Md. Jan. 28, 2019)

Equal Pay: State and Local Laws

• State-law trend: Equal pay laws departingfrom federal standards

• Eight states in past three years

• Lower standards for plaintiff to prove thestate-law claims

Wage And Hour Issues: State and Local Minimum Wage and Wage Theft Laws• Significant Shift: States and municipality

laws on minimum wage and wage theftlaws

• 19 states and D.C. have passed minimumwage laws

• Legislation in 4 states this year alonemoving minimum wage to $15/hour by 2025

Wage And Hour Issues: State and Local Minimum Wage and Wage Theft Laws (cont’d)

• Many municipalities also enacting minimumwage laws

• Wage theft laws – requiring specificdisclosures, record-keeping, and updates

Wage And Hour Issues: US DOL Salary Thresholds Rule

• Some white-collar exemptions from OT:administrative, executive, professional

• Must satisfy duties tests and salary basistest

Wage And Hour Issues: US DOL Salary Thresholds Rule (cont’d)

• 2004 salary basis test: $455/week($23,660/year)

• 2016 proposed rule: $913/week($47,476/year)

• 2019 proposed rule: $679/week($35,308/year)

• Projected effective date: January 1, 2020


Other aspects of proposed rule:

• Does not change the job duties of theexemption tests or the fact that blue collarworkers are not exempt

• Increase for the “highly compensatedemployee” exemption from $100,000 to$147,414


• Non-discretionary bonuses, incentivepayments, and commissions to satisfy up to10% of the new salary threshold

• No automatic increase in the salarythreshold. DOL proposes a “commitment toperiodic review to update the salarythreshold”

Questions?

Thank you!

Diversity & Inclusion: Planting Seeds for Recruitment and Retention

Philomena Morrissey Satre Director of Diversity & Inclusion and External Strategic Partnerships Land O’Lakes, Inc. Philomena serves as Director of Diversity & Inclusion and External Strategic Partnerships. She joined Land O’Lakes June 2017, bringing more than 30 years of human resource experience in diversity and inclusion, community relations, work life and wellbeing. Before joining Land O’Lakes, she worked at Wells Fargo & Company. Her previous roles included VP of Organizational Effectiveness Development, Diversity and Inclusion; Community Outreach Consultant; and Senior HR Consultant. Philomena has extensive experience in developing and implementing diversity strategies, including internal initiatives and community-focused pipelines. Previously, Philomena participated in a Middle East Fellows project, in partnership with Hamline University and the U.S. State Department and traveled to the Middle East as a part of the peace and economic development project. Philomena recently joined the Board of Directors for the Cookie Cart organization. She co- leads the Leadership Advisory Board for SHIFT and formerly served on the Board of SHIFT (nonprofit focused on people in midlife) for 8 years. Philomena serves on the Agriculture D and I Consortium; and co-chairs the Twin Cities D&I Roundtable. Philomena was recently named to the Minnesota Workforce Citizen Commission on Aging. She previously served on the Minneapolis Workforce Council, the Executive Leadership Council for Honoring Women Worldwide, the Goodwill Easter Seals, Comunidades Latinas Unidas En Servicio (CLUES), Lifeworks, HIRED and Resource Inc. Advisory Boards. She also co led the 2020 Women on Boards initiative for Minnesota. Philomena has received numerous awards, including AARP/Pollen 50 over 50, the Minneapolis Business Journal’s Woman Change Maker and Minority Advocate, Minnesota Business The (Real) Power 50 Award and the University of Phoenix Diversity Leadership Award. Philomena has an MA in Organizational Leadership from St. Catherine University and a BA in Public Administration and Political Science from the University of Wisconsin LaCrosse. Philomena is an Adjunct Professor at the University of St. Catherine in the Master of Organizational Leadership Graduate Program.

Workshop Goals

LearnLearn

ListenListen

Reflect & RenewReflect & Renew

Expand Your MindsetExpand Your Mindset

Apply & IntegrateApply & Integrate

Agenda

Diversity + Inclusion Overview

Recruitment Learnings

Discussion and Questions

WHY D+I MATTERSThe importance of diversity & inclusion…

Better understanding of our customers.49% of employers surveyed in LinkedIn’s Global Recruiting Trends 2018 said they focus on diversity to better represent their customers.

Diverse teams perform better.

Deloitte (2013) found that when employees think their organization is committed to & supportive of diversity & feel included, their ability to innovate increases by 8%.

Diverse teams have also been found to make decisions 60% faster than non‐diverse teams.

Greater innovation & creativity.Organizations are looking beyond D+I to the concept of “belonging” – a key focus cited by 57% of organizations (LinkedIn Global Recruiting Trends 2018).

It’ll boost your employer brand!

54% of women and 45% of men surveyed said they researched if companies had D+I policies in place, when deciding to accept a position with their most recent employer (PwC, 2017).

Furthermore, 61% of women and 48% of men said they assessed the diversity of the company’s leadership team when deciding to accept an offer.

At Land O’Lakes, we work together to discover, build and achieve our purpose. Vital to our success and core to who we are, is diversity and inclusion. It means valuing

and respecting the perspectives, experiences and talents of all individuals.

Rooted in our cooperative values, our employee and member community is built on the principles of inclusion and embraces teamwork.

High performing teams, where every voice feels heard and valued, allow us to pursue our common purpose: feeding human progress™.

Our Commitment to Diversity + Inclusion

Strategic Areas of FocusDiversity+ Inclusion comes to life at Land O’Lakes

WorkforceWho we’re hiring and how.

Recruiting: Inclusive recruiting efforts by expanding external partnerships.

External Brand: Integration of D+I into Feeding Human Progress, Inc.™ campaign and recruitment collateral. Marketplace

Engaging our partners, customers, and communities.

Supplier Diversity: Utilizing suppliers that reflect our values and consumers to win.

Growth and Solutions: Supporting business unit ambitions by increasing customer and consumer relevance.

Communities and Citizenship: Lead and serve alongside our communities through sponsorships, philanthropic and volunteerism efforts.

WorkplaceHow it feels when you’re here.

Leadership Commitment: Diversity Executive Council and Diversity Enrichment Council.

Employee Resource Groups: We provide a safe space for all employees to engage in cultural learning sessions, listening forums, and more!

Inclusive Environment: Mentorship, sponsorship, & professional development.

The Land of Inclusion: It Starts with ME3 Essential Ingredients:

• Allows us to continually learn, be vulnerable, & ask good questions

Humility

• Allows us to say what needs to be said with the other person’s best interest in mind

Courage• Allows for

forgiveness, compassion, & partnership

Empathy

PROGRESS IS PURPOSE

Q1: Innovative Mindset

with

Brave New Workshop

Q4: Identity & Belonging

with

Wing Young Huie

Q2: Unconscious Bias

with

Dr. Ramón Pastrano

Q3: Annual D+I Summit

THE POWER OF COLLABORATION

Cultural & Diversity Dimensions

Personality Primary Secondary Cultural

EthnicitySexual Orientation

Age/Generation

Physical/Mental Ability

Gender

Race

Marital/Parental StatusLanguage/Accent

Social Style

Nationality

Appearance

Location

Hobbies

Educational Background

Religion

How we communicate

Individualistic/Group oriented

How time is measured

Importance of a task to relationship

How power is displayed

How decisions are made

How we send messages

How we interpret the rules

Guidelines for Conversation:Source: Human Systems Institute

• Speak from your own experience: “I + My”• “Step in and step back” – share time• Be Respectful: words, tone, + body language• Challenge ideas, not persons• Confidentiality – what happens here, stays here

Rules of Inquiry:• Turn judgement into curiosity• Turn disagreement into shared exploration• Turn defensiveness into self-reflection• Turn assumptions into questions

Which Primary / Secondary / Cultural dimensions of Diversity are significant to you?

Which dimensions of Diversity can be challenging for you?

Share with your Partner

Recruitment Strategies and

Learnings

Elements of Diversity Hiring Plan

Relationships & Outreach

Branding

Leader Champions

Metrics/KPIs

Strategic Partnership Opportunities

Forge strategic relationships with professional organizations together

MANRRSMANRRSCLUES

ROMBA

NAAPNAAP

Women in Ag

Yellow Ribbon

MakeIt.MSPMakeIt.MSP NABA

AVIVOAVIVO

Talent Acquisition: Diversity and Inclusion Development Journey

2018:• Generations in the Workplace• Quarterly updates with TA and D&I on opportunities• Unconscious Bias Training• D&I strategy updates

2019:• IDI Culture survey and Feedback • Diversity Hiring strategy roll-out

Recruitment ERG Leads:Dede Fitzmaurice – PrideKent Johnson – LOL AmigosSarabeth Bosselman – Asian AffinityStephanie Moore – Aging SuccessfullyLisa Eiden – African AncestryRyan Seleski – Disability AwarenessJim Bruno – VeteransCatie Ludden – Young ProfessionalsAnn Taylor – WLN

Employee Resource Groups (ERGs)“Corporately‐recognized groups of passionate employees (and their allies) from traditionally under‐represented groups AND/OR share a common purpose and meet a business need.”

Recruitment

Retention & Promotion

Business Insights

Community Relations

1

2

3

4

ERG PillarsAfrican AncestryAging Successfully

Asian Affinity ConnectionDisability Awareness

Field Inclusion NetworksLOL AmigosPride Alliance

Veterans & Troop SupportWomen’s Leadership Network

Young Professionals

Employee Resource Group Feedback Summary

Strategy/connection for recruiting varies by ERG from pillars newly forming to engaged teams with plans

Biggest recognized need/gap for diverse talent is in the experienced professional space

Opportunities exist for more partnership with recruitment on professional network development, and better connections into the college recruiting efforts on campus

ERG’s want to understand the talent needs at LOL -so they can activate their networks

Leverage more branding and presence on social media for talent

© 2018 Land O’Lakes, Inc.

Companies Selected for Benchmarking

• Boston Scientific

• Cargill

• Corteva

• Best Buy

• U.S. Bank

• John Deere

Common Diversity Hiring Obstacles

Identifying What Is

“Diversity”

Location

Limited Talent Pool

Hiring Managers’

Expectations

Misperceptions and Biases

Key Themes From Benchmarking

• Many organizations have “diversity champions”

• Senior leaders who represent the business and champion diversity

• Most organizations say their leadership endorsing and having a high level of commitment to diversity has made a difference in their hiring

• Several made a conscious effort to define what “diversity” means in their organization (i.e. for Best Buy – ‘we are all diverse’)

Key Themes continued

• Many organizations have reviewed their job descriptions to prevent gender biases

• Several are using recruitment resources with LinkedIn and AIRS Diversity Recruiter training

• Most view job fairs as branding opportunities-not leveraged as much for direct hiring

• Investment is in relationships and sponsorships of partners (MANRRS, HBCUs, Women in Ag)

• Requisition representation dashboard data and publication of qualified diverse applicant percentages is regularly published and reviewed by leadership

Q & A

#Eat Together:

https://www.youtube.com/watch?v=vDuA9OPyp6I

Lets Talk

• Whose voice is heard-not heard in your organization?

• What key messages resonated with your from a D+I perspective?

• What might be 1 action to take from a recruitment perspective?

• What is 1 action from a retention perspective?

Inclusion in Action

• Seek out new experiences

• Don’t be afraid to get it wrong

• Avoid imposing your own values

• Learn to appreciate the value of diverse views

• Exercise Curiosity

• Grow through practice-practice-practice

Call to Action

What did you learn?

How can you share?

What will you do?

“Do your little bit of good where you are; it's those little bits of good put

together that overwhelm the world.”

– Desmond Tutu

[email protected]

Supervisors: Issues, Training and Policies

Kristy Albrecht Shareholder Fredrikson & Byron, P.A. Kristy is a shareholder in Fargo, ND and a member of the Employment & Labor, Litigation, Transportation and Appellate Groups. She advises employers on a variety of employment law issues, including hiring, firing, discipline, employee leave laws, employee handbooks, drug and alcohol policies and separation agreements. Additionally, Kristy advises and defends motor carriers on DOT issues, particularly focusing on compliance and audit work under the regulations of the Federal Motor Carrier Safety Administration. An experienced litigator, she represents clients before state and federal agencies and in state and federal court on various types of claims, such as workers’ compensation (WSI), unemployment insurance, discrimination, harassment, retaliation, wrongful termination and trade secrets violations. Kristy received her Bachelor of Arts in Music Education/Piano Performance and her Juris Doctorate from the University of Iowa College of Law.

SUPERVISORS: ISSUES, TRAINING AND POLICIES1 Kristy Albrecht

Fredrikson & Byron P.A. October 3, 2019

[email protected] D: (701)-237-8201 O: (701)-237-8200

I. INTRODUCTION Supervisors play a critical role in any organization. Whether they realize it or not, they represent the organization, and they can create, increase or minimize the organization’s legal risks as to its employees. Supervisors are also in the best position to communicate performance and conduct expectations to employees, and to set a tone of respect, fairness and professionalism in the workplace. Finally, supervisors are first line of defense in terms of assuring the fair resolution of employee concerns and disputes. The goals of this presentation are to discuss some recent cases that highlight the key role of supervisors in the workplace, to provide some basic guidance as to supervisor training, and to discuss and provide guidance on some sample supervisor policies. II. CASES DEMONSTRATING SUPERVISOR ISSUES EEOC v. Favorite Farms, No. 8:17-cv-01292-JSM-AAS (M.D. Fla. Dec. 19, 2018). A jury awarded $850,000 to a female farm worker who was raped by her supervisor and reported it to management and the police the same day. The evidence at trial showed that management did not properly investigate the complaint, sent the woman home without pay, allowed the supervisor to continue supervising women in the fields. Finally, the evidence showed retaliation in that the women was forced to take a leave of absence. The evidence also showed that this wasn’t the first complaint of sexual harassment against the supervisor.

Best Practices for HR: When receiving a complaint of harassment, take it seriously. Do a prompt and thorough investigation. Do not make decisions that appear to punish the complainant (e.g., sending her home without pay). Remove the alleged harasser from the environment pending the investigation. Any immediate protective actions should not be based on whether you think the claim has merit or believe one person more than another – but rather based on a matter of risk matter concerning the substance of the complaint, if believed. Make no early judgments of the case prior to the investigation.

EEOC v. Bornt & Sons, Inc. dba Bornt Family Farms, 3:17-cv-00678-W-NLS (S.D. Cal. July 25, 2018). The EEOC alleged that a farm manager sexually harassed a group of four female workers by leering at them, grabbing their private areas, making sexual comments, and subjecting them to unwanted touching and kissing. The EEOC also alleged that when three other women refused the supervisor’s sexual advances, he retaliated by either firing or refusing to rehire them. The EEOC also alleged that the company fired or refused to rehire at least three

1 The material contained herein is intended to be educational. It does not constitute legal advice.

- 2 -

males who had a familial association with the women who had alleged harassment. Finally, the EEOC alleged that the company failed to take remedial action when the EEOC began its federal investigation. The parties entered into a Consent Decree, under which the company paid $300,000 to the women who claimed sexual harassment and retaliation. The company also agreed (1) to reinstate the workers who had been denied reemployment, (2) to create and prepare a new employment handbook with more explicit policies and reporting procedures, (3) to train all staff members on its policies, and (4) to create a centralized record-keeping log to track all harassment complaints.

Best Practices for HR: Have updated and complete harassment policies, including reporting procedures, on which all staff have been trained. Train your supervisors on your zero tolerance policies as to sexual harassment, and investigate any claims. If a claim has no merit, you want a detailed investigative report, with factual determinations, in your file. If a claim has merit, you want to remediate immediately and effectively.

Parker v. Reema Consulting Services, Inc. 915 F.3d 297 (4th Cir. Feb. 8, 2019). Evangeline Parker was a warehouse worker for about 18 months, during which time she received six promotions, ultimately becoming an assistant operations manager in the warehouse. However, shortly after receiving that promotion, she learned of a rumor going around that she had she had had sex with her male superior to obtain her promotions. The facts led to a dispute with her supervisor, and she was eventually terminated. She sued, alleging wrongful termination and a hostile work environment claim. Her allegations were as follow: The rumor about her had been started by a male employee who had started at the warehouse the same time she did, and who was now her subordinate. The rumor was spread by the highest ranking manager in the warehouse, Larry Moppins. As the rumor gained traction, she was subjected to increased hostility and disrespect in the workplace. When she met with Moppins to discuss the workplace hostility and the rumor, he accused her of “bringing the situation into the workplace,” told her he could not promote her any further because of the rumor. He eventually told her angrily that he should have fired her when she started “huffing and puffing about this BS rumor.” She then went to HR with her concerns. She was told to limit her contact with Moppins. Even then, he would go into her work area and mock her, staring and laughing at her. Eventually, Moppins gave Parker two written warnings, one based her insubordination towards him and the other based on the male coworkers’ (the guy who started the rumor) complaint against her. Moppins fired her when he met with her on the second warning. The district court dismissed the hostile work environment claim after concluding that the company’s actions were not based on sex, but rather on her alleged conduct in sleeping with her boss, and following that analysis, dismissed the retaliatory termination claim because the alleged harassment was not discriminatory and therefore there was no objective basis for reasonable belief of illegal retaliation under Title VII.

- 3 -

The Fourth Circuit Court of Appeals disagreed. It reversed the dismissal, holding that the rumor was rooted in longstanding negative stereotypes about women in the workplace and was therefore sufficient to support a sex discrimination claim under Title VII. Important to the court’s analysis was the fact that a supervisor (Moppins) had participated in circulating the rumor and had acted on it by sanctioning the employee.

Best Practices for HR: This fact pattern represents what we try to avoid with our supervisors. First, we need to train supervisors on how to handle difficult situations. They must act on harassment allegations, engaging HR to assist with an investigation. Further, they must not demean subordinates who report harassment, make fun of them, or retaliate against them -- even if the supervisor does not believe the allegations and even if the supervisor does not particularly like the person reporting the issue. HR needs to investigate issues and the company needs to remedy any issues it finds through the investigation. As with all personnel issues, the file should be documented with the investigation information, including the findings of fact, and any remedial actions taken. This may include discipline of a supervisor who acted inappropriately.

II. SUPERVISOR TRAINING – WHAT SUPERVISORS NEED TO KNOW A. Some Basic Information. • Much of the time, supervisors are promoted to that status because they were great

workers, not because they have the knowledge and skills to manage people.

• Supervisors need training not only on procedures and practical responsibilities, but on how to manage the issues they will face with their direct reports and how to lead their group to foster a positive, respectful and productive work environment.

• Supervisors need to know that what they do or say – or fail to do or say – can cause the company liability.

-- This includes their emails, texts, jokes, and comments, and other communications

-- This includes communications at work and in non-work settings.

B. Status of Employment

• At Will Employment – Employee can quit with or without notice, with or without reason. Same standard applies to the Employer can end the relationship at any time, but not for an illegal reason.

• Supervisors need to know that the doctrine of “at will” employment is like a piece of swiss cheese for employees; it has many holes. Because of that, they must get help with a risk management analysis before discharging an employee.

- 4 -

C. Discrimination/Harassment Claims

• Supervisors need to understand there are many protected classes, and employees will be in at least one protected class.

-- The protected classifications include race, color, sex, religion, national origin, disability age, creed, pregnancy, marital status, veteran status, status with regard to public assistance, genetic information, and (in some states) sexual orientation.

• Supervisors must be informed that they can potentially create risk to the organization because of the way they manage people

-- We must measure employees by the quality of their work and based on legitimate business considerations, not based on any protected group that they may be in.

-- We must treat people with respect, regardless of whatever group they may be in.

-- The culture of respect begins with the supervisor.

-- Even subtle forms of retaliation or harassment cannot be allowed.

• Supervisors need to understand the evidence that causes liability in discrimination, accommodation, and retaliation claims.

-- Policies

-- Manager/Supervisor comments

-- A workplace culture allowing disrespect, bullying, and/or harassment

-- Inconsistent application of policies

-- Comments, tests, emails, and other communications of supervisors and managers.

• Supervisors need to be clear regarding policies addressing romantic relationships in the workplace

• Supervisors need to understand that behaviors are sometimes perceived differently by different people. They need to be open and listen to someone who is expressing concerns. We want employees to feel able to report issues to their supervisor, with confidence that the issues will be handled fairly.

• Recommendation: Use case studies when training your supervisors.

-- Use examples that apply to your work setting.

-- Use examples that provide focused attention to the specific types of challenges your supervisors face.

- 5 -

E. Accommodation Issues

• Supervisors need to understand our accommodation obligations and that we must work with employees who give us notice or a request for accommodation as to a disability, religion, or pregnancy.

• They need to be trained on what “notice” is.

• They need clear direction on what to do upon receipt of notice.

F. Discipline and Documentation

• All of the above information should inform supervisors on fair discipline. Consistency as to the disciplinary measures is critical.

• Supervisors need to understand the requirement of documentation.

-- When to document.

-- How to document

-- Where to file or submit the documentation.

-- Where they can get help with documentation.

III. SUPERVISOR POLICIES A. Competing Considerations for Written Policies • As with any employees, we want to give supervisors clear guidance regarding their

responsibilities. Employees will not be successful if they don’t know the expectations.

• It is also important for them to have something in writing to reference as to their practical and procedural duties.

• We also want supervisors (and any third parties reviewing our documents) to be clear about our expectations of fairness, respect, and professionalism in our workplace and in the way we manage personnel issues.

• At the same time, we do not want to create additional risk of liability by setting absolute standards someone might misunderstand as creating a “right” for employees and that will be used that way in litigation against the company.

B. Sample Written Policy: Points to Consider

Greg Bell from PCCA kindly offered for review for this session a draft supervisor handbook he is working on for supervisors. The goal of using his draft here is to spark comments and discussion regarding its proposed provisions. This presentation should not be considered legal

- 6 -

advice, and all of you (including the PCCA) should consult with your own attorneys as to specific policies. That said, the draft does indeed provide opportunity for general guidance and educational comments here. My thanks to Greg for sharing his work.

• Consider Including Caveat Language. You might want to include an introductory section at the beginning of the handbook making clear that this handbook is provided to supervisors to assist them in their responsibilities, but it is not intended to be anything more than a guide and helpful resource to them.

-- You want to be clear that the supervisor policies do not create any rights on the part of employees of the company, nor is it intended to change or add to workplace rules or handbook policies applicable to all employees of the company.

-- The exact language you use should be drafted in consultation with your attorney, based on the jurisdictions where you practice.

-- In some situations, an attorney might also recommend putting this sort of caveat in a footnote that appears on every page of the handbook. In others, one might simply add it to the sections where the language might be misconstrued to create additional employee rights.

• Practical Manager Responsibility Terms. This draft is very good in that it provides information regarding practical responsibilities of supervisors and the procedures they should follow. Some of those types of duties include:

-- Reviewing and approving time cards and submitting them to payroll

-- Considering and managing requests for paid time off, vacation, and/or sick leave, and documenting the same

-- Conducting performance evaluations

-- Wage reviews and increases

-- Ordering supplies

-- Following processes for the supervisor’s travel reimbursements

-- Managing and approving reimbursements for subordinates

-- Setting budgets

• Code of Conduct. A separate Code of Conduct may include terms covering commitment to the highest ethical standards, good-faith reporting, confidentiality, privacy issues, conflicts of interest, respectful work environment policies.

-- Many organizations have a separate Code of Conduct, and what exactly to include depends on the industry and specific organizational standards.

- 7 -

-- Supervisors should be provided the Code of Conduct, which may address some of the issues set forth in the sample draft handbook.

• Guidance on Transitioning to Supervisor Status

-- This section addresses important differences between peer relationships and supervisor/subordinate relationships.

-- Recommendation: New supervisors should be trained on this specific subject matter.

-- As to supervisors’ communication with new subordinates, consider the guidelines you want for all circumstances, and make room for situations that may not apply.

-- Sample policy: “Sit down one-on-one with each person in the department to discuss their feelings about your transition to manager. Talk about the expectations you have of each other and get potential issues out on the table so you can address them.”

-- Will that be the best approach in all situations and for all supervisors? Will a meeting with the direct reports as a group suffice in some situations and perhaps be a better means of communication?

• Guidance on Working with Subordinates.

-- Take care not to create absolute procedural standards that may inadvertently create rights, but provide guidance to your supervisors.

-- Sample policy provided to consider:

Code of Civility to adhere to and promote in the workplace. As a supervisor/manager, one of your responsibilities is to create an environment where employees treat each other with civility and respect. Set an example for all employees to follow. Always be aware of how you are speaking to a co-worker; Treat everyone equally and with respect, no matter the conditions; Be aware of how your behavior may affect others; Always be kind and courteous when interacting with others. This will enable employees to feel like you are approachable; Be open to feedback from each other; When speaking with an employee be direct, sensitive and honest; Acknowledge the contributions of others; Respect each other’s time commitments.

Tweaks:

‘Code of Civility’ to adhere to and promote in the workplace. As a supervisor/manager, one of your responsibilities is to create an environment where employees treat each other

- 8 -

with civility and respect. Set an example for employees to follow. Some guiding principles: Always bBe aware of how you are speaking to a co-worker; Treat everyone fairly equally and with respect, no matter the conditions, even when doing so is hard because of how they are acting; Be aware of how your behavior may affect others; Always bBe kind and courteous when interacting with others. This will enable employees to feel like you are approachable; Be open to feedback from each other; When speaking with an employee, be direct, sensitive and honest; Acknowledge the contributions of others; Respect each other’s time commitments.

• Hiring Policies

-- This section is very helpful too. Supervisors involved in hiring must be clear about the hiring hiring processes.

-- Excellent to provide guidance as to conducting a job interview.

-- One additional point would be to request the interviewer to prepare a basic set list of questions, and to ask all the interviewees the same questions. This assures consistency.

-- Another point to add when you explain what not to ask or take notes on, is that the reason is that we do not consider ask those questions or take notes on those points of information is that they are irrelevant. We must and do focus on hiring the most qualified people on the merits when making hiring decisions.

-- Good to have specific policies as to internal applications and processes. Recommendation: Consult with your counsel as to any legal obligations you may have under your collective bargaining agreement or any applicable laws as to the practice of obtaining consent from the current supervisor of an internal applicant seeking a new position.

• Discipline Policies

Sample policy provided to consider:

When there are performance problems with an employee, talk with the employee to see if there are any issues which keep the employee from completing the job in an acceptable manner. Coach the employee to correct any issues. Unless an immediate, egregious act occurs, the employee should be receiving coaching and performance feedback over time. If, after coaching, the employee’s performance issues persist then a verbal warning may be necessary. If a verbal warning is given, ensure the employee knows it is a verbal warning. Document that a verbal warning was given, the details of the conversation, including the employee’s response and comments and the date the warning was given. If

- 9 -

the issue persists, then further disciplinary action may be required, including either a written warning or termination. Some employees feel they will never be fired. If a written warning is issued, include in the warning that if the issue continues it could ultimately lead to termination of employment. No employee should be blindsided when fired. Go through the proper steps to attempt to correct the issues. Submit all documentation to the H.R. department to go in the employee file.

Guidance:

-- Take care not to describe a progressive discipline policy that does not allow deviation for specific circumstances.

-- Similarly, take care not to speak in absolutes. (E.g., “No employee should be blindsided when fired.”) There are exceptions to general rules, and we do not want general statements to be used against us out of context.

-- Include language stating that discipline should be considered based on the specific facts of the case, in accordance with the organizations discretion to determine appropriate discipline in each case.

-- Consider recommending consulting with HR on discipline issues.

-- Check your general handbook policies to be sure that what you describe is consistent with those policies.

• Conflict Resolution Policies (Sample Policy Attached)

-- Consider converting this section into a training module for supervisors, rather than including it as part of the supervisor handbook.

-- This guidance provides excellent food for thought, and it would be a great spring-board for a training session. Perhaps also incorporate some case-studies that are applicable in your work environment, and have the supervisors apply the concepts in this section to those facts.

-- Perhaps the training would include a bullet point guidance sheet for attendees to refer to later.

• Discrimination, Harassment, and Retaliation

-- Good to require supervisors to take complaints seriously and get HR involved immediately.

-- Recommendation: Compare your general employment handbook policy against the this one to be sure they are consistent.

- 10 -

• Termination

-- Good to emphasize “at will” status.

-- Take care not to limit the company’s ability to terminate employees.

E.g., “You can terminate an employee for many reasons; however, you really need a good reason.”

E.g., “The Employee Handbook has a section on the Conditions of Employment with PCCA and cites additional reasons when an employee would be terminated.”

-- Good to provide guidance to supervisors on processes and paperwork.

-- Recommendation: Simply instruct supervisors that HR will provide answers to employees regarding benefits issues (e.g., 401k funds and COBRA).

SUPERVISORS: ISSUES, TRAINING AND POLICIESPresented By: Kristy L. Albrecht, Esq.October 3, 2019

Scope of Topics For This Presentation

• A Few Recent Cases Demonstrating Supervisor Issues

• Supervisor Training: What Supervisors Need to Know

• Supervisor Policy Considerations

© 2019 Fredrikson & Byron, P.A.

Recent Cases Demonstrating Supervisor Issues

• EEOC v. Favorite Farms, No. 8:17-cv-01292-JSM-AAS(M.D. Fla. Dec. 19, 2018)

• EEOC v. Bornt & Sons, Inc. dba Bornt Family Farms, 3:17-cv-00678-W-NLS (S.D. Cal. July 25, 2018)

• Parker v. Reema Consulting Services, Inc. 915 F.3d 297(4th Cir. Feb. 8, 2019)


Supervisor Training: What Supervisors Need to Know

• They set the tone for the workplace by the example they setand by their expectations regarding their direct reports.

• They represent the company, and what they say and dohas practical and legal implications.

• At will employment is not a free pass.



• Basic discrimination concepts – what are the protectedclassifications

• The need to focus on performance, not classifications, andmaintaining a respectful culture.

• What constitutes evidence of discrimination, harassment orretaliation.

• Romantic relationship rules



• Accommodation Requirements– What issues require reasonable accommodation, unless we can

prove an undue burden

– What is adequate notice

– What to do when on notice of an accommodation need



• Documentation Requirements– What and when to document communications

– How to document

– Where to submit or file the documentation

• Suggestion: Provide specific documentation training

• Suggestion: Give supervisors forms to complete


Supervisor Policies: Competing Considerations

• Provide sufficient information regarding responsibilities, includingpractices and procedures of the job.

• Provide guidance to supervisors to help them in promote and manageaa fair, respectful and professional environment.

• Do not create standards that indicate or create employee rightsbeyond what you have in your employment policies.


Supervisor Policies: Comments on Sample Draft

• Consider including Caveat Language.

• Very good guidance on practical issues regardingmanagement responsibilities.– This is the bulk of the handbook, and it will be an excellent

reference for supervisors.

• Consider a separate Code of Conduct.


Supervisor Policies: Comments on Sample Draft

• Guidance on Transitioning to Supervisor Status, andGuidance on Working with Subordinates, and DisciplineGuidance– These provisions provide important information on which

supervisors should be trained.

– Avoid appearance of creating employee rights.

– Consider separate guidance with a training module for theseissues, rather than including that information here.


Supervisor Policies: Hiring Provisions

• Very helpful information as to process of hiring.

• Very helpful as to job interview issues.– Consider script of questions prepared in advance

– Consider stating why we don’t ask certain questions or take notes on thoseissues.


Supervisor Policies: Discipline & Conflict Resolution Provisions• Concern about creating progressive

discipline policy and rights related to same.

• Recommend to work with supervisors onconflict resolution and discipline in training,rather in the handbook.– Could provide guidelines with that training.

– Less likely to be cited as a “right” by others.

• Preserve company’s discretion.

• Consider directing supervisors to HR for help


Supervisor Policies: Discipline & Conflict Resolution Provisions• Consider directing supervisors to HR for help

with conflict and disciplinary issues.


Supervisor Policies: Termination Provisions• Good to provide supervisors the processes

and practical information.

• Good emphasis on “at will” status.

• Careful not to limit that status in the guidanceto supervisors.

• Perhaps simply instruct supervisors to sendemployees to HR regarding benefits andother details related to the termination.


Supervisor Policies: Termination Provision• Concern about creating progressive discipline

policy and rights related to same.

• Recommend to discuss this in training, rather in the handbook.

• For anything written on discipline, include language preserving company’s discretion on discipline.

• Consider directing supervisors to HR for help


Questions?

Thank you!© 2019 Fredrikson & Byron, P.A.

PCCA MANAGER HANDBOOK A Guide to being an effective Supervisor/Manager

May 2019

1

Manager Handbook

February 2019

Index PAGE

Section 1: Manager Responsibilities

Manage Employee Vacation and Sick Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Conduct the 90-Day Review/Interview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Submit Time Cards to Payroll . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Organizational Chart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Code of Civility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Moving from Co-worker to Supervisor/Manager . . . . . . . . . . . . . . . . . . . . . . . . . 3

Ordering Supplies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Travel and Travel Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Capital Expenditure Budgets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Section 2: Hiring a New Employee

The Process of Hiring an Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Job Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Notification to Employees of an Open Position within the Company . . . . . . . . 6

Conducting a Job Interview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Offering a Job to an Applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Protocol for Employees to Apply for a Job within the Company . . . . . . . . . . . . 8

Section 3: Annual Wage Reviews and Wage Increase Requests . . . . . . . . . . . . . . . . . . . . . 9

Section 4: Conduct Performance Evaluations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Section 5: Coaching/Disciplining an Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Section 6: Conflict Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Section 7: Discrimination, Harassment and Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Section 8: Terminating an Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Section 9: Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2

Manager Handbook

Section 1: Manager Responsibilities

It is very important for you as a manager to know and understand the policies outlined in the Employee Manual. Managers, by law, reflect the intent of PCCA to its employees. The Employee Manual has been designed to maintain consistency in operations and to satisfy the legal requirements set by the Federal and State Government. It is the responsibility of each manager to follow the guidelines set by the PCCA Employee Manual. Some things, like how to compute Initial Vacation time, are vital during the hiring process. Understanding the conditions of employment is vital in knowing what warrants consideration of termination. The following items from the employee handbook are a few of the major topics of importance that arise on a more frequent basis.

Manage Employees Vacation and Sick Time

Maintain a log of used vacation and personal days for each employee to ensure you and your employees know exactly where they are at any given time. Keep good and accurate records of this time. Verify hours taken on a regular basis. Contact H.R. for additional resources to help manage your employee’s vacation and sick time.

Conduct the 90-Day Review/Interview

For new employees it is very important to conduct the 90-day interview. The employee is expecting and wanting to have this face-to-face interview with you. Take the time to write down your thoughts on all issues of the employee’s duties and performance. Have specifics to review with the employee. If there is corrective action that needs to take place, this is a good time to review that with the employee. Be honest with the employee. Praise the employee where they are performing well and provide constructive instructions on areas that need improvement. If you do not feel this is the right employee for the job, then now is the time to terminate the employment. When terminating an employee at this time, it is appropriate to give the employee a reason for dismissal.

Submitting Time Cards to Payroll

The Payroll Department utilizes an online time card system called Timeclock Plus. Hourly employee workweeks run Saturday through Friday, and checks/auto-deposits are made the following Friday. Every Monday, you will access this system to review hours worked by Hourly employees for the previous week. After approving the hours, save the Weekly Punch report and email it to the Payroll Department. . Salary employees are paid twice a month and checks/auto-deposits are paid through the 15th and end of each month. If the 15th or end of the month falls on a weekend or holiday, then the checks/auto-deposits are paid on the preceding workday. The Payroll Department will assist you in accessing the Timeclock Plus system and provide the necessary training needed to operate the system.

3

Become familiar with the organizational chart

Ask the Executive Assistant of the V.P. – H.R. & Administration to give you a copy of the organizational chart each year. She can set up a reminder to send you a copy of the chart annually if you request one. Review the chart each year for any changes. You are responsible for knowing the general functions of each department. If you do not know, then it is up to you to ask. Knowing the functions and responsibilities of the other departments will help you in many ways and will give you a better understanding of how the departments work together to accomplish the goals of the company.

‘Code of Civility’ to adhere to and promote in the workplace

As a supervisor/manager, one of your responsibilities is to create an environment where employees treat each other with civility and respect. Set an example for all employees to follow.

Always be aware of how you are speaking to a co-worker;

Treat everyone equally and with respect, no matter the conditions;

Be aware of how your behavior may affect others;

Always be kind and courteous when interacting with others. This will enable employees to feel like you are approachable;

Be open to feedback from each other;

When speaking with an employee be direct, sensitive and honest;

Acknowledge the contributions of others;

Respect each other’s time commitments.

Moving from Co-worker to Supervisor/Manager

Making the move from co-worker to department supervisor or manager can be a tricky transition because as the new manager, you are responsible for the productivity and results of your department. Oftentimes, former co-workers, either because of jealousy or out of habit, will not want to treat you as the boss; they may want to continue treating you as one of the group.

Realize that your previous personal relationships with co-workers will need to be moved to a different level because you are no longer a peer – you are now the person who assigns work, analyzes productivity and provides performance appraisals.

Sit down one-on-one with each person in the department to discuss their feelings about your transition to manager. Talk about the expectations you have of each other and get potential issues out on the table so you can address them.

Remain professional at all times and treat each employee fairly and with respect.

Eliminate any gossip and venting sessions with employees.

4

Do not allow previous work and/or friendships with your former peers to influence your new managerial responsibilities.

Ensure that everyone on the team understands your new role as their manager and the responsibilities that are expected of you as well as the role each of them plays in the success of the department.

Work out a game plan for how you and your team can best work together to achieve the goals and objectives of the department. Be sure to communicate clearly and concisely those goals and objectives.

See H.R. to find out what training and support is available as you take on your new leadership role.

Remember, your position as the new manager is not about trying to be popular; it is about leading other to achieve results. You may not win over everyone in the department, especially if one or two others also applied for the position you ultimately received. No matter what happens, keep the focus on the work to be done, give it your best effort every day, treat everyone fairly…and respect should follow.

Ordering Supplies

From time to time, you will find the need to order office supplies that are not in stock in the Supply room. Contact H.R. to inform them of the specific item(s) you need and they will obtain the availability and prices of the product from our customary supply companies. If our normal supplier do not have the specific item then H.R. will assist you in finding your item from other sources. Once you have decided to order the supply then H.R. will place the order and take care of submitting the invoice to the Accounting Department for payment. The items will be delivered to you when they arrive.

Travel & Travel Expenses

Obtain permission from your supervisor before arranging to travel on company business. Customary and reasonable travel expenses are reimbursable to you. PCCA does not give employees company credit cards and does not have a per diem policy. You will pay for your travel expenses then turn in receipts to be reimbursed. If the expected expenses exceed your ability to pay, then you can request a ‘cash advance’. Submit a Cash Disbursement Voucher (Exhibit 6) to your supervisor for approval. The voucher will go to the Controller. If the amount is in excess of $500 then the V.P. of your department will need to approve. The Controller will deliver the cash to you and will maintain a ledger of advances to offset against the Travel, Meal and Entertainment Expense Report you submit following the travel event.

PCCA requests employees use discretion on expenditures when travelling on company business. A good rule of thumb is to spend the company money as if it were your own. It is not customary for PCCA to pay the expenses of spouses when accompanying an employee on company business except when the spouse is ‘invited’ by the company to attend, such as the NCC Annual Meeting, TACC Joint Cooperative Meeting, Amcot Annual Meeting, CGWA Annual Meeting, and the Texas Independent Ginners Annual Meeting. PCCA never asks to be reimbursed on a hotel room when a spouse accompanies an employee

5

on company business. If you are expected to drive on company business and you do not have a company car, you can contact the H.R. department to obtain a company car. You will be reimbursed at a specified rate per mile if you drive your personal car on company business. Ask your supervisor before making travel arrangements if you have any questions about reimbursable expenses.

If you would like to have the company book and pay for airfare, hotel and car rental, obtain a Travel Request Form (Exhibit 4) from the Executive Assistant to the V.P. of H.R. & Administration. The Executive Assistant can provide you with an excel file of the form for you to fill out. We can normally find cheaper rates when booking reservations early so please submit a request as soon as possible. Fill out the form in its entirety and submit to the Executive Assistant. You can obtain your Supervisors signature on the form or the Executive Assistant can submit it to your supervisor for approval. She will obtain the additional signature needed for the President/CEO, V.P. of Finance or Controller. Once the form has all necessary signatures, she will begin making the Flight, Hotel and Auto reservations. All Hotel and Flight reservations booked will be paid for with a company credit card. Auto rental reservations are customarily made through Avis and you will charge this to your credit card. The company credit card will not be used when Dana make Auto rental reservations. You can expect to be asked to present your personal credit card at hotels for incidentals even though the room charges will be paid for by PCCA. You are responsible for paying all non-reimbursable personal charges with the hotel at the time of check out. Dana will confirm the details of your travel request with you before booking reservations

In order to be reimbursed by PCCA for expenses, complete a Travel, Meal and Entertainment Expense Report (Exhibit 5). This form is in an excel format and can be obtained from the Executive Assistant to the V.P. of H.R & Administration. Fill in the header information with your department number, destination, your name, the from and to date range, purpose of your travel and the cash advance amount, if applicable. Enter in the appropriate expense amounts under the Travel Expense, Meal Expenses and Entertainment Expenses sections. You must provide receipts for any item over $25. On the right side of the form is where you explain all the Travel Expenses. Meal Expense is for meals of employees only. If you are requesting reimbursement for a meal where someone other than employees are included (excluding spouses which are counted as employees, when approved) then utilize the Entertainment Expense area and list all persons at the meal. The mileage reimbursable rate changes annually and you can obtain this rate from the Executive Assistant to the V.P. of H.R. & Administration, the Controller or the V.P. of Finance. Review the document carefully before signing in the Employee field. Submit to your supervisor along with your receipts for his/her signature. Your supervisor will turn the paperwork in to the Controller for payment. PCCA will cut you a check. It will not be a direct deposit. If you have any further questions about the proper method of completing this form, please talk to the Controller.

Capital Expenditure Budgets

As manager of a department, you will be required to submit a departmental capital expenditure budget each year. In May of each year, the Tax, Budget, & Special Projects Accountant (position currently held by Danny Abbott) will send you an excel spreadsheet. The spreadsheet will show what you have budgeted for the year and what has been spent so far. If you have not spent the budgeted amount, he will need to know if you plan to use the unspent amount before June 30, if you do not plan to spend the budgeted amount, or if you wish to roll it over to the next fiscal year. You will also be filling out your expected capital expenditure requests for the next fiscal year. Email the completed spreadsheet back to

6

Danny and visit with him about the information submitted. Danny will submit the Cap Ex requests to the V.P. of Finance for review. He will contact you if he has any questions before reviewing this information with the President/CEO and ultimately request board of director approval.

7

Section 2: Hiring a New Employee

The process of hiring an employee

Write, review or update the current job description

Determine, review or update the salary/hourly wage

Fill out a Personnel Action Form obtained from H.R. (see Exhibit 1)

Discuss the open position with your supervisor or manager & obtain a signature

Submit the request to the President/CEO Kevin for review, approval and his signature

Submit the Personnel Action Form to H.R. and make a copy for your records

H.R. will help use the job description to write a job posting

H.R. will post the job on certain job posting websites, on PCCA’s website and will send an interoffice email

H.R. will set up, conduct initial interviews and pass all qualified applicants to you

A job description provides a precise account of a job’s requirements and duties and must contain:

Job title – Must be short, definite and suggestive of the nature of the job

Job location – name of the department where the job exists

Job summary – short summary of the objective of the job

Job duties & responsibilities – specific list of job tasks to be performed

Job supervision – the nature of supervision involved in the job

Who sends out the email to the employees when a position becomes available in the company?

It is H.R’s responsibility to send out an email to all employees in the company of any open positions. This email must to be approved by the supervisor and the department head before it is distributed.

8

Conducting a Job Interview

Your role is to convey and obtain information. Convey to the applicant as much as possible about the job and obtain as much information from the applicant as needed.

Establish a rapport with the applicant with a pleasant smile, firm handshake and a casual statement or two. Outline the objectives and structure. For example, you can say, “In the time we have, I would like to ...”

Gather information with very specific questions. Ask relevant questions that is needed to judge an applicant’s competence or qualifications for the job. If it is not relevant, do not ask it. Keep the conversation focused on job-related information. Do not write notes on the resume or application. All notes should be written on a separate piece of paper.

Give information about PCCA and even ’sell’ the position. Be sure to do this after you have let the applicant answer your interview questions. If you tell the applicant exactly what you are looking for first, they can adapt their answers to fit what they perceive as your needs.

Do not search social media on an applicant. H.R. will perform all background investigations.

Do not ask discriminatory questions. Stay away from questions that concern race, religion, age, ethnic background, gender, marital status, national origin, sexual lifestyle (or preference) or smoking habits. Some questions that could be considered discriminatory include:

Are you married?

What is that accent you have?

Where is your spouse from?

Are you engaged?

Do you have children?

Where are you from?

Were you born here?

What is your ethnic heritage?

What church do you attend?

How old are you?

When were you born?

When did you graduate from high school?

The rule of thumb is that if it does not have anything to do with the position you are trying to fill, do not ask. It is OK to take notes during an interview but do not make notes about how an applicant looks or about gender, race, religion, color, or age.

Close the interview by thanking them for their interest in the job and that H.R. will contact them as to whether or not there will be a second interview, if applicable. Be sure to give the applicant an opportunity to ask any final questions. Provide a general timeframe for getting back in touch.

9

What to do once you have decided to hire a specific applicant

Contact the applicant for a final interview. Ask if the applicant is still interested in the open position. If so, explain you have conducted interviews of all qualified applicants and have decided to offer the job to this person. Be very specific in the rate of pay, ensure it matches the Personnel Action form, and answer any questions the applicant may have about the job. H.R. can answer any questions regarding company benefits. Make sure the applicant understands the 90-day review/interview process. It may be helpful to read this directly out of the Employee Manual. Set a deadline for the applicant to confirm whether they are accepting the job offer and set a start date. It is customary to give the applicant a week to respond.

What is the protocol if an employee from another department wants to apply for a position in your department?

Interested employees will be asked to contact the H.R. department to complete an application and submit a resume. The H.R. department will conduct an initial interview, which will be kept confidential. It is imperative employees go through H.R. instead of directly to the supervisor or department head of the open position. Following the interview, if H.R. believes the employee is a good candidate for the open position, H.R. will send the employee’s resume and application to the department with the open position to continue the interview process. It is the responsibility of the employee to inform his/her direct supervisor that they are applying for a job within the company. This is to be done before the employee has the interview with the supervisor of the open position. H.R. will contact the employee’s current supervisor for consent for the employee to interview/transfer to another department prior to sending the employee’s resume and application to the department with the open position.

10

Section 3: Annual Wage Reviews and Wage Increases Requests

Around the first of May each year, the President/CEO will announce to the management team the percentage, if any, of a wage and salary increase along with a range, if any, of potential discretionary bonus to be allocated for the upcoming fiscal year. The V.P – H.R. & Administration will generate a ‘PCCA Annual Review of Salaries and Discretionary Bonuses’ worksheet for each department listing current employees in each department and their current salaries and the prior year’s discretionary bonus. These worksheets are distributed to the V.P.’s. The V.P.’s will then visit with their department managers, give them the worksheet for their department and inform them of the percentage wage increase and discretionary bonus amount.

The department manager performs individual employee assessments and completes the worksheet with their intention for distributing the wage and salary increase and discretionary bonus. The overall percentage increase for the department should not exceed the amount provided. Some employees may be given more or less than the allocated percent increase but the goal is for the department not to exceed the overall percentage increase given. For employee(s) that have shown exemplary performance over the previous year you should prepare a written explanation as to why the employee should be given additional consideration and be prepared to back up your case with specifics. The manager will then review the proposed wage increases and bonuses with their V.P. to formulate a final draft for the department. The President/CEO will visit separately with each V.P. to review the worksheets and make any adjustments they feel is needed before approval is given by the President/CEO. The V.P. will relay back to their department managers the final approved wage and salary, and discretionary bonuses to be paid.

The new wage and salary will normally go into effect the first pay period following the end of the fiscal year of June 30. Managers will be notified exactly when the employees will see the wage increases in their pay checks/deposits. The bonus checks will be delivered to the V.P. of each department and then given to the managers for distribution to the employees. It is during this process and this time of the year when managers should conduct individual employee performance evaluations.

11

Section 4: Conduct Performance Evaluations

Develop a habit of delivering feedback frequently. Do not wait for the formal performance evaluation to provide praise or analyze performance. Set regular times to discuss the employee’s progress.

Document performance and do not put anything on a performance evaluation (Exhibit 3) that you

have not personally seen. Throughout the year, jot down notes for yourself. At evaluation time, you will have a full view of the employee’s work, untainted by recent events and you will be able to support your rating of the employee.

Have an up-to-date job description available. This will give you the outline of items to cover. The

performance evaluation should be accurate, complete and consistent, providing a fair and objective assessment based on the employee’s job and goals. Discuss the appraisal together and give a written appraisal to the employee with any notes or correction made to the initial draft that came out during the evaluation.

Ask the employee for feedback. Remember that you have a role in the employee’s performance,

too. You may want to ascertain from the employee anything that you can do to provide help in making their job easier and them more successful. An employee’s performance is a collaborated effort by the employee, co-workers and management. Their insight can be very helpful.

Use the evaluation process to clarify the employee’s role in the department and to set goals for

the future. Make sure the employee’s goals are in line with the company’s goals. Have the employee sign the evaluation form. The signature documents that the employee

received the review, even if he or she did not agree with its contents. However, if you have held frequent conversations about performance throughout the year, the annual review will not contain any surprises.

12

Section 5: Coaching/Disciplining an Employee

Why and when do you write a written reprimand?

When there are performance problems with an employee, talk with the employee to see if there are any issues which keep the employee from completing the job in an acceptable manner. Coach the employee to correct any issues. Unless an immediate, egregious act occurs, the employee should be receiving coaching and performance feedback over time. If, after coaching, the employee’s performance issues persist then a verbal warning may be necessary. If a verbal warning is given, ensure the employee knows it is a verbal warning. Document that a verbal warning was given, the details of the conversation, including the employee’s response and comments and the date the warning was given. If the issue persists, then further disciplinary action may be required, including either a written warning or termination. Some employees feel they will never be fired. If a written warning is issued, include in the warning that if the issue continues it could ultimately lead to termination of employment. No employee should be blindsided when fired. Go through the proper steps to attempt to correct the issues. Submit all documentation to the H.R. department to go in the employee file.

13

Section 6: Conflict Resolution

Conflict in the workplace is not always a bad thing. Healthy conflict leads to questions and discussions, opening up new ways of thinking and more innovative solutions to problems. Negative conflict affects employee performance and ultimately leads to declines in productivity. How do you resolve conflict in order to ensure your workplace is humming, relationships are strong, communication is effective, coworkers are getting along and they are being productive? The first step is to identify the source of the conflict. Understand the importance of strong listening. Determine when conflict is worth discussion. Lead feedback conversations with questions and endorsements. Provide recommendations that align with team or business impact. Know when to be deferential or concede on certain issues. Discuss issues directly to avoid misunderstanding and prevent derailments.

A leading cause of conflict within teams stems from generational differences. The root of this is that team members simply do not understand each other’s perspectives and feel strongly that their way is the best or only way. Each generation has their own work styles and preferences, and they often have trouble seeing value in other ways of doing work. Unconscious bias leads to these feelings becoming amplified and therefore clouding people’s judgements.

It is worth the investment of time to have the team sit down and talk to each other. Prompt them to explain their behaviors and the reasoning why they are doing things a certain way. Give them a space in which they are able to ask questions and really start to understand each other. This will help resolve personality clashes, miscommunication, and overall team performance.

It is important to address as many of the issues that arise together as a team, rather than singling people out. This will reinforce the fact that the team functions as a unit and working together as one is a priority. Sometimes teams require more structure in place to prevent conflicts from happening over power struggles. Remind the team that conflict is healthy and encouraged as long as it is productive.

If one person is consistently, causing challenges and you are not seeing improvement that would be the time to pull them aside individually. Continue to monitor and check in with the team periodically. This will help prevent any future conflicts from spiraling out of control, and will continue to emphasize to them the importance of working as a team.

Try the following five steps to resolve conflict that arises between you and an employee.

Pause and get grounded – sometimes when conflict arises, we want to jump right in and get it fixed. Sometimes the best thing you can do is to take a step back and pause. Just relax, get grounded, understand what is going on, and be in check with your emotions. Make sure you are emotionally in the right place. If you are emotionally in the right place then everything can move forward accordingly.

Zoom out to gain perspective – often times we are looking at issues through a narrow lens. We see things our way and only our way. That can make it difficult to resolve conflict because there are other views or perspectives. Therefore, when you zoom out, and take a wider lens and look at the situation from others point of view then you can factor in things you may not have thought of before. This will allow you to see the other side and begin the process of resolving conflict.

https://www.forbes.com/sites/ashiraprossack1/2018/05/18/how-millennials-are-changing-the-way-we-view-leadership/

14

Take responsibility for yourself – None of us are perfect. Sometimes you make mistakes and you have to own up to that. Give an honest look at your involvement in the situation. If it was your mistake that started the conflict then own up to it and by doing so, you will be going a long way to bringing the other party to the table to resolve the issues.

Use ‘I’ statements – If you do have to give an employee a reprimand or some type of criticism, use ‘I’ statements. Such as “I noticed....” or “this is how I feel when you did...” Make it less about them; make more about you and, in this way, it is less personal to them. They can start to see the impact of their behavior. Hopefully, that alone will make a difference.

Be willing to forgive – When somebody makes a mistake or someone hurts us we want to respond and sometimes hold a grudge. Holding a grudge will not help in conflict resolution. It is only going to perpetuate the problem.

15

Section 7: Discrimination, Harassment and Retaliation.

Make the workplace free of any discrimination, harassment and retaliation. Complaints involving discrimination, harassment or retaliation need to be addressed immediately by contacting the H.R. department. Do not put this off thinking it will resolve itself or that it is not a severe issue. Any complaint will be taken seriously and the company will conduct a prompt, thorough, and impartial investigation. The identity of an individual who submits a report, a witness who provides information regarding a report, and the target of the complaint, will be kept confidential to the extent possible. Any information gathered as a part of an investigation will be kept confidential to the extent possible. PCCA will take immediate and proportionate corrective action if it determines that discrimination, harassment or retaliation has occurred.

There are various types of discrimination prohibited by law: age, disability, national origin, pregnancy, race/color, religion, sex and genetic information. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, disability and genetic information also prohibit retaliation against individuals who oppose unlawful discrimination. Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age, disability or genetic information.

16

Section 8: Terminating an Employee

Become familiar with the Employee Handbook

Employment with PCCA is for no fixed or definite term. All employment by PCCA has been and continues to be at-will. That means that both the employee and/or PCCA have the right to terminate employment at any time, with or without notice, and with or without cause. The Employee Handbook has a section on the Conditions of Employment with PCCA and cites additional reasons when an employee would be terminated.

Inform and Consult H.R.

Several employment and labor laws prohibit employee termination based on legally protected characteristics. H.R. interprets the laws to ensure that the worker’s rights are not, intentionally or unintentionally, violated by PCCA. H.R.’s role in the termination process is to review the reasons for the termination, ensure compliance with company policy and laws and to protect the company from any legal ramifications.

Some issues may require consultation with legal counsel. You do not want to assume anything. What may be an obvious situation may, in fact be unlawful for the company. Terminating an employee is stressful. Do not do it yourself, let H.R. assist you in this process.

When can you terminate an employee?

You can terminate an employee for many reasons; however, you really need a good reason. Contact H.R. to discuss these reasons further. Some violations of company policy may allow you to take corrective actions in lieu of termination.

Does the company have to give a two-week notice?

No. Any employee can be terminated and asked to leave the property immediately. There are instances where a two-week notice is warranted but it is not required.

What is included in computation of the final paycheck?

Payroll will compute the total hours worked for the current pay period then add any unpaid hours worked, plus unused vacation pay or holiday pay, less standard deductions and remaining health insurance premiums, if applicable.

17

What form needs to be filled out?

The Separation Form (Exhibit 2) will need to be completed by H.R. and you will need to sign it along with your Department Manager (if applicable), the H.R. Manager and the V.P. of H.R. & Administration. The Payroll Department will insure that you have seen the final pay check and agree with the number of unpaid vacation, holiday and personal days. H.R. will collect the signature(s) of the remaining people following you signing the document. H.R. will also be responsible for collecting any company property such as building key cards/fobs, company vehicle and keys, credit cards, etc.

What happens to the employees 401k funds?

The employee is 100% vested in his/her own contributions and 100% vested in the company matching contributions. There is a 6-year vesting schedule on the 4% company basic contribution. The employee has control of all employee contributions and vested company contributions. Milliman returns un-vested company basic contributions to PCCA.

Can the employee ‘roll’ their 401k to another company’s 401K when the employee locates another job?

Yes, the employee’s 401k is portable. Milliman will require the employee to send in a rollover form in order for the 401k deferrals to be rolled to another eligible 401k plan. The employee can obtain the form by contacting Milliman USA at 1-800-652-6675.

18

Section 9: Exhibits

Exhibit 1 – Personnel Action Form

Exhibit 2 – Separation Form

Exhibit 3 – Performance Appraisal Evaluation Form

Exhibit 4 – Travel Request Form

Exhibit 5 – Travel, Meal and Entertainment Expense Report

Exhibit 6 – Cash Disbursement Voucher

The H2A & H2B Guest Worker Programs

Loan Huynh is a Shareholder at Fredrikson & Byron and has practiced immigration law for over 20 years. She is co-chair of the immigration department and also leads the firm’s Diversity & Inclusion Committee. She focuses on employment-based immigration, corporate immigration compliance and global mobility solutions for employers, ranging from Fortune 500 companies to mid-size companies, entrepreneurs/investors, and family-owned farms by developing practical immigration policy and strategies to meet their global mobility and immigration goals. Loan also leads Fredrikson & Bryon’s Immigration Team’s I-9 audit and corporate immigration compliance practice and H-2 practice. She is on the board of the Advocates for Human Rights and YWCA Twin Cities. She was a member of the Board of Trustee of the American Immigration Council. She has served on AILA’s DOL Liaison Committee since 2015 and is the current H-2 Vice Chair. She is also a frequent speaker at national conferences, served as an expert witness on H-2 matters, and has written extensively on immigration issues. She is a girl refugee who fled from Vietnam in 1975 with her four siblings and parents. She loves all kinds of music as long as it’s great, cooking, dancing with her daughters, reading historical nonfiction, and practicing yoga.

Mark Martens Co-Owner Agri Placements International Mark has a degree in Business from Oklahoma State University and has been with Agri Placements for five years. Agri Placements began in 1998 when the founder, Elaine Flaming, began doing H2A paperwork for her husband, Dennis, who was a custom harvester at the time. API has grown from that into what it is today; they handle a variety of H2A applications for farmers and agricultural companies coast to coast and border to border.

Courtney Thomas Staff Attorney GROWMARK, Inc.

Courtney Kahle is a Staff Attorney for GROWMARK, Inc. Courtney received a Bachelor of Science from the University of Illinois, a Juris Doctorate from Loyola University School of Law, and is currently pursuing a Master’s degree in Business Administration. Courtney joined GROWMARK in October 2015 and focuses on Labor, Employment and Benefits Law.

The H2A & H2B Guest Worker Programs

Presentation by:

Courtney Thomas Staff Attorney GROWMARK, Inc.

Mark MartensCo-OwnerAgri Placements International

Loan HuynhImmigration AttorneyFredrikson & Byron, PAMinneapolis, MN

Program Overview

• Overview of H-2A and H-2B Programs• Employer’s Obligations• Audit Files and Wage and Hour Division Investigations

Temporary Work Visa Options

Is the position agricultural (H-2A) or non-agricultural (H-2B)? ?

H‐2A Temporary Agricultural Worker Visa

H-2A Process-Three StepProcess:

1. Temporary Labor Certification– DOL• ETA 790 Agricultural

Clearance Order - StateWorkforce Agency (75-60days prior to need)

• File ETA 9142A no laterthan 45 days from date ofneed


2. Form I-129 Nonimmigrant Petitionwith USCIS3. DS-160 Visa Application at U.S.Consulate for Each Worker (unlessCanadian citizen)

H‐2A Temporary Agricultural Worker Visa –Assurances and

Obligations– Must offer employment to qualified, able, willing & available US

worker up to 50% of the completion of contract– Provide free housing for those whose residence is not within

commuting distance– Workers’ Compensation– Provide Tools, Supplies & Equipment– Provide cooking/eating facilities, or three meals a day– Provide transportation and subsistence– Three-fourth guarantee of work contract– Record of earnings must be provided to H-2A worker– Pay the highest of AEWR, prevailing wage, prevailing piece rate,

the agreed-upon collective bargaining wage, if applicable, or minimum wage



• Employers are responsible for legal fee and visa fees• Reporting Requirements• Audit Files


H‐2B Temporary Non‐Agricultural Worker Visa

• Subject to cap of 66,000 visas (October-March &April-September)

• H-2B Eligible Countries-published annually inFederal Register

• Must Establish Temporary Need for Place ofEmployment/Worksite

What is Temporary Need?

• Not employed workers to perform labor in past and willnot need in the future or temporary event has created needfor temporary worker

One-Time Occurrence

• Tied to a season of the year by an event or pattern andrecurring nature

Seasonal Need

What is Temporary Need? ‐ Cont.

• Regularly employs permanent workers to performservices or labor and need is to temporarily supplementpermanent staff

Peakload Need

• Has not employed permanent or full-time workers toperform the services or labor and employer has occasionalor intermittent need for workers to perform services orlabor

Intermittent Need

H‐2B Temporary Non‐Agricultural Worker Visa Process

Department of Labor

- Obtain Prevailing Wage Determinationfrom DOL, Form ETA 9141 – 60 daysfor DOL to Issue Prevailing Wage- Temporary Labor CertificationApplication, Form ETA 9142B – file noearlier than 90 and no later than 75 daysbefore date of need-DOL Issues Notice of Acceptance andrecruitment requirements

H‐2B Temporary Non‐Agricultural Worker Visa Process

USCIS - I-129 Filing

- Can request Premium Processing- Request consular processing orextension of status/change of status

US Consulate

- Workers outside of US file VisaApplication(s) at U.S. Consulate unlessCanadian citizen


Program Requirements -Appendix B of ETA 9142B

Offer full-time employment (35 hours)

Offered wage in the job order equals or exceeds the highest of the prevailing wage or Federal minimum wage, State minimum wage, or local minimum wage

Provide or reimburse the worker for transportation and subsistence if the worker completes 50 percent of contract

Must pay or reimburse the worker in the first workweek for all visa, visa processing, border crossing, and other related fees (including those mandated by the government) incurred by the H-2B worker

Offer US workers hired during the same recruitment period the same terms, wages, and working conditions as H-2B workers

Provide workers, without charge or deposit, all tools, supplies and equipment required to perform job duties


Program Requirements -Appendix B of ETA 9142B

Job requirements must be normal and customary in the industry/region

Guarantee number of work hours equal to 75% of the workdays in 12 week period (six weeks if job order is less than 120 days)‐”3/4 Guarantee”

Pay at least every two weeks or according to prevailing practice, whichever is more frequent

Maintain accurate earning records including hours offered and actually worked

Provide workers with copy of job order

Cannot seek payment from H‐2B worker for any activity related to obtaining H2B certification

Best Practices for I‐9 and DOL Wage and Hour Audits

• Conduct In-House/SelfAudits ofImmigrationFiles

• ImmigrationComplianceFiles

• “Buy American, Hire American” Executive Order andSecretary Acosta’s 6/6/2017 Press Release

• DHS Delegated Enforcement Authority

• OFLC Certifying Officer Audits

• Wage and Hour Division (WHD) Investigations

Enforcement Authority of DOL

H‐2B OFLC Audits

• The Audit Letter

• Supplemental Request for Information

• Consequences of Failure to Respond

OFLC Audits – Common Violations

• Incorrect Earnings Report

• Unlawful Deductions

• Transportation and Visa Fees

• Corresponding Employment & ¾ Guarantee

WHD – Enforcement Authority

• Conduct Investigations

• Impose Civil Money Penalties

• Assess Back Wages or Make Whole Relief,Injunctive Relief and Performance of Obligations

• Debarment

WHD Investigations –Scope & Jurisdiction

• H-2B and H-2A Programs and Regulations

• The Fair Labor Standards Act

• The Migrant and Seasonal Agricultural WorkerProtection Act

• Any Federal Laws Setting Labor Standards

WHD Investigations –Scope & Jurisdiction

• Workers

– H-2 Workers

– Workers in Corresponding Employment

– U.S. Workers Improperly Laid Off or Not Hire

WHD Investigations –How Are They Conducted

• Process Can Vary Among WHD Offices

• Unannounced Visits Common

• Interviews of Employees

• Request for Documentation Can Be Overly Broad

Common Violations‐US Worker Protections

• Improper Rejection of U.S. Workers

• Preferential Treatment of Foreign Workers

• Noncompliance with Recruitment Requirements

Common Violations‐Wage Related

• Not paying highest of prevailing wage or Federal/state/ low minimum wage requirement

• Deficient earning records

• Unlawful deductions

• Failure to reimburse subsistence expenses

Common Violations‐Terms of Job Opportunity

• H-2 Workers Performed Job Duties Not in WorkContract

• H-2 Workers Placed Outside Area of IntendedEmployment

H‐2B Enforcement –USCIS FDNS Site Visits

• Confirm Wage and Hour Obligations: Paystubs, OT,Transportation and Visa Fees

• Interview H-2B Employer and H-2B Employees• Review Recruitment Documentation• Take Photos of Work Areas• Confirm Job Title and Duties• Confirm Number of H-2B Workers and US Workers

Questions?

Thank you!

WHERE LAW AND BUSINESS MEET®

An Overview of the H-2A Visa for Temporary Agricultural Foreign Labor Workers

The H-2A visa is available to employers engaged in agricultural work who cannot find temporary or seasonal help, such as farm workers, ranch hands, irrigators, and orchard workers. U.S. employers may petition for skilled or unskilled foreign workers to meet temporary or seasonal needs in positions for which qualified U.S. workers are not available. It is important to note that the employer’s need for such services must be temporary. There is currently no annual cap on visas for H-2A workers. PROCEDURES I. Labor Certification The first step to hiring an H-2A worker from outside the U.S. is for the employer to apply for a temporary labor certification with the Department of Labor (“DOL”). The certification from the DOL is designed to ensure that the admission of foreign workers on a temporary basis will not adversely affect the job opportunities, wages, or working conditions of U.S. workers. The employer is required to file the certified H-2A Application for Alien Certification with the I-129 Nonimmigrant Petition with the USCIS. H-2A labor certifications must be filed with the DOL, no less than 45 days before the first date on which the employer estimates that workers are needed. Early filing is encouraged. The DOL must render a decision within 20 calendar days before the date the workers are needed. An H-2A petition may be filed by either the employer listed on the certification application, the employer’s agent, or the association of United States agricultural producers named as a joint employer on the certification application. 8 CFR 214.2(h)(5). If the application is filed by the employer’s agent, the agent may sign the application if the application is accompanied by a signed statement by the employer which authorizes the agent to act on the employer’s behalf. If there is more than one employer, the petition must be filed with an attachment showing that each employer has agreed to the conditions of H-2A eligibility. Labor certification is the process used to determine if the employment is for a temporary or seasonal agricultural worker. It will determine whether the position is open to U.S. workers and if there are qualified U.S. workers available. The process determines any adverse impact the employment of a qualified foreign worker will have on other U.S. workers, and whether the employment conditions, including housing, meet the requirements discussed below.

H-2A Temporary Visa Program


A. Job Offer The job offer shall state the number of workers needed by the employer based upon the employer’s anticipated shortage of U.S. workers. The job offer must also state the anticipated dates the workers are needed. The job offer must be filed with the local State Workforce Agency (SWA) between 75-60 days prior to date of the workers are needed. The SWA will review the job offer to assess whether it meets regulatory and prevailing wage requirements. If so, the SWA will issue a Notice of Acceptance of Job Offer and will post the position on the intrastate job bank. A copy of a work contract or the job order must be provided by the employer to each worker in a language understood by the worker as necessary or reasonable prior to the date work commences under the contract. B. Minimum Requirements of Beneficiaries The petitioner must state the minimum requirements for the position offered. Any named beneficiary must provide proof that the minimum requirements were met at the time of filing. Unnamed beneficiaries must provide proof that the minimum requirements were met at the time of application for an H-2A visa or when the certification was applied for or prior to admission if a visa is not required. i. Past Experience (if required by employer) This evidence can be provided in the form of a statement by a past employer or actual employment documents, such as company payroll or tax records. If this evidence cannot be obtained, affidavits from people who worked with the beneficiary may be provided to demonstrate the claimed employment. ii. Education (if required by employer) This evidence may be provided by the submission of documents issued by the relevant institution or organization that show periods of attendance, majors and degrees or certificates accorded. C. Temporary and Seasonal Employment The H-2A petitioner must establish that the employment proposed in the certification is of a temporary or seasonal nature. Employment has been defined as seasonal where:

It is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations.


Employment has been defined as temporary where:

The employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than one year.

D. Recruitment of U.S. workers The Petitioner must also comply with the 50% rule, which requires that from the time the foreign workers depart for the employer’s place of employment, the employer shall provide employment to any qualified, eligible U.S. worker who applies to the employer until 50% of the period of the work contract has elapsed. Recruitment of U.S. workers requires advertising for the position, consultation with local unions, and documentation of all recruitment efforts conducted in cooperation with the DOL. The Petitioner must also attest that it is not requesting H-2A certification due to labor disputes or strikes at the work place; that the employer will comply with all employment related laws; that no U.S. workers will be rejected other than for lawful job-related reasons and that it has independently engaged in the recruitment of workers in compliance with the DOL. An H-2A application shall always include each of the following, including minimum benefits, wages and working conditions offered: (1) Housing. The employer shall provide without charge to the worker, rental or public accommodation type houses. Housing must meet the standards set forth in the DOL Occupational Safety and Health Administration Standards. The housing provided by the employer is subject to inspection to ensure it meets the applicable standards. Also, when it is the prevailing practice in the area of intended employment and the occupation to provide family housing, family housing shall be provided to workers with families who request it. (2) Workers’ compensation. The employer shall provide, at no cost to the worker, insurance, under a State worker’s compensation law or otherwise, covering injury and disease arising out of or in the course of the worker’s employment. The employer shall furnish the name of the insurance carrier and the insurance policy number, or, if appropriate, proof of state law coverage, to the DOL prior to the issuance of the labor certification. (3) Employer-provided items. The employer shall provide, at no cost to the worker, all tools, supplies and equipment required to perform the duties assigned. Where it is a common practice in the particular area, crop activity and occupation for workers to provide tools and equipment, with or without the employer reimbursing the workers for the cost of providing them, such an arrangement is permissible if approved in advance by the DOL. (4) Meals. Where the employer has centralized cooking and eating facilities designed to feed workers, the employer shall provide each worker with three meals a day. When such facilities are not available, the employer shall furnish free and convenient cooking and kitchen facilities to the workers to enable them to


prepare their own meals. Where the employer provides the meals, the job offer shall state the charge if any to the worker, which shall not be more than the amount acceptable to the DOL. (5) Transportation. The employer shall advance transportation and subsistence costs (or otherwise provide them) to workers when it is the prevailing practice of non H-2A agricultural workers in the occupation in the area to do so. The employer may also be obligated to provide transportation between place of employment and living quarters and free transportation to country of origin upon completion of the work contract. (6) Three-Fourths Guarantee. The employer must guarantee to offer each worker employment for a total number of work hours equal to at least three-fourths of the workdays in the work contract period and any extensions. If the employer affords less employment, then the employer must pay the amount which the worker would have earned had the worker been employed the guaranteed number of hours. (7) Record keeping. The employer must keep accurate records with respect to a worker’s earnings. The worker must be provided with a complete statement of hours worked and related earnings on each payday. The employer must pay the worker at least twice monthly or more frequently if it is the prevailing practice to do so. (8) Wages. When the worker is to be paid by the hour, the employer must pay at least the highest of the Adverse Effect Wage Rate (AEWR), the applicable prevailing wage, or the statutory minimum wage as specified in the regulations. (20 CFR §655.102(b)(9)). The AEWR is different for each state and changes yearly. (9) Certification Fee – a fee is charged to an employer granted temporary alien agricultural labor certification. II. Form I-129, Petition for Nonimmigrant After receiving an approved labor certification from the DOL demonstrating that U.S. workers are not available and that the wages and working conditions meet the regional standards, Form I-129 is then filed by a U.S. employer or an association of U.S. agricultural producers named as a joint employer on the certification with the USCIS Service Center that has jurisdiction in the area where the services will be performed. The total number of unnamed beneficiaries must be shown on the petition. Beneficiaries unknown at the time of filing do not need to be identified until the application for visa issuance from the Department of State. (1) Number of Beneficiaries. The employer may petition for multiple beneficiaries if the total number does not exceed the number of positions indicated on the related labor certification and if all beneficiaries will obtain a visa at the same consulate, or if they are not required to have a visa, will apply for admission at the same port of entry. The petition may also include beneficiaries seeking a change of status or extension of stay who are already in the United States. If any beneficiary is in the United States, they must be named in the petition.


(2) Validity Period and Admission. The petition is only valid for the period indicated on the approved labor certification. The beneficiary may be admitted to the United States for the validity period of the petition, PLUS a period of up to 7 days before the validity period begins and 10 days after the validity period ends. If a visa is not required, the I-797 approval notice may be presented at the port-of-entry by the beneficiary to obtain entry into the United States in H-2A status. As the position is a temporary position, the duration of the petition must be less than one year. (3) Reporting Requirements. If the employees should leave their employment more than 5 days in advance of the completion of the stated employment period or abscond, the employer must report this to the Nebraska Service Center within 24 hours. To avoid paying liquidated damages ($10 for each instance where the petitioner fails to notify NSC, $200 for each instance where the petitioner cannot demonstrate the worker departed the U.S. or obtained other authorized status), the employer must also establish that the worker departed from the U.S. or found other authorized status. III. Visa Processing at Consulates Beneficiaries who are not citizens of Canada and who are not seeking a change of status or extension of status within the U.S. must apply for a H-2A visa with the approved H-2A petition to enter the United States and work in H-2A status. FEES

I. H2A Labor Certification Fee: $100 plus $10 for each job opportunity for H-2A workers certified, capped at $1,000.

II. Filing Fee for Form I-129: $460

III. Visa Processing Fees $190 per visa. OTHER CONSIDERATIONS I. Substitution of Beneficiaries after Start of H-2A An H-2A petition may be filed with the USCIS to replace H-2A workers whose employment was terminated early. The petition must be filed with a copy of the labor certification, a copy of the approval notice covering the workers for whom replacements are sought, and proof the beneficiaries meet the minimum requirements for the position.


II. Extension of H-2A Validity Period The Petitioner can request a two week extension of the H-2A validity period by submitting a request to the USCIS. If the period is for more than two weeks, the Petitioner must submit an email to h2a.amend&[email protected]. III. Worker Abandonment/Termination Notifications In addition to reporting to USCIS of a worker’s abandonment/termination before the end of the certified work period, the Petitioner must provide written notification to the DOL within two working days of the abandonment or termination from the job. The notification should be sent to h2a.abandonment&[email protected].

For further information regarding the H-2A temporary visa program for agricultural worker or H-2B temporary visa program for non-agricultural worker, please contact Loan Huynh, [email protected].

Loan T. Huynh shareholder

[email protected] 612.492.7165 Assistant: Maiyia Vang [email protected] 612.492.7617

This material has been prepared by Fredrikson & Byron, P.A. for informational purposes only. This information does not create an attorney-client relationship between the reader and Fredrikson & Byron, its attorneys, or the authors of this material. © 2016 Fredrikson & Byron, P.A. All rights reserved.

mailto:h2a.amend&[email protected]

mailto:h2a.abandonment&[email protected]

H-2A Compliance Checklist

ONCE EMPLOYMENT OF U.S. WORKERS IN CORRESPONDING

EMPLOYMENT, OR EMPLOYMENT OF H-2A WORKERS COMMENCES,

EMPLOYER MUST:

YES NO

1. PROVIDE THE WORK CONTRACT OR JOB ORDER (FORM ETA-790)

TO EACH WORKER (FOREIGN OR U.S. WORKER IN

CORRESPONDING EMPLOYMENT) BY THE FIRST WORKDAY.

2. KEEP ALL REQUIRED PAYROLL RECORDS.

3. PROVIDE REQUIRED WAGE STATEMENT TO WORKER ON OR

BEFORE EACH PAYDAY?

4. PAY ALL WAGES DUE ON THE DISCLOSED PAYDAY?

5. PAY THE CORRECT WAGE RATE EACH PAYDAY? THAT RATE IS

THE HIGHEST OF THE AEWR, STATE OR FEDERAL MINIMUM

WAGE, PREVAILING WAGE, OR PROMISED WAGE, INCLUDING

PIECE-RATES.

6. GUARANTEE PAYMENT FOR 3/4 OF THE WORK HOURS IN THE

CONTRACT PERIOD?

7. MAKE ALL LEGALLY REQUIRED PAYROLL DEDUCTIONS AND NOT

MAKE DEDUCTIONS PROHIBITED BY LAW OR NOT DISCLOSED IN

WORKER CONTRACT?

8. A. PROVIDE HOUSING TO ALL WORKERS UNDER THE CONTRACT

(U.S. WORKERS IN CORRESPONDING EMPLOYMENT AND H-2A

WORKERS) WHO CANNOT REASONABLY RETURN TO THEIR

PERMANENT HOME AT NIGHT?

AND

B. ENSURE THE HOUSING REMAINS IN COMPLIANCE WITH

APPLICABLE SAFETY AND HEALTH STANDARDS?

9. PROVIDE HOUSING DESCRIBED IN #8 FREE OF CHARGE FOR RENT

OR DEPOSITS TO ALL WORKERS?

10. A. PAY THE COST OF TRANSPORTATION AND SUBSISTENCE, TO

YOUR WORKSITE, FROM WHERE EACH U.S. OR FOREIGN WORKER

WAS RECRUITED WHEN THE WORKER COMPLETES 50% OF THE

CONTRACT?

B. PROVIDE DAILY TRANSPORTATION FROM THE HOUSING TO

THE WORK SITE AT NOT COST?

C. AT THE END OF THE CONTRACT PERIOD, PAY FOR THE

WORKER’S RETURN TRANSPORTATION AND SUBSISTENCE TO

“THE PLACE FROM WHICH HE CAME”, USUALLY HIS OR HER

HOME?

11. ENSURE THAT VEHICLES USED TO TRANSPORT U.S. OR H-2A

WORKERS MEET FEDERAL, STATE AND LOCAL SAFETY

REQUIREMENTS?

12. PROVIDE THREE MEALS PER DAY AT COST OR FREE

CENTRALIZED COOKING FACILITIES FOR THE WORKERS?

13. PROVIDE NECESSARY TOOLS, SUPPLIES AND EQUIPMENT AT NO

COST TO THE WORKER?

14. PROVIDE WORKER’S COMPENSATION INSURANCE (OR ITS

EQUIVALENT IF WORKERS ARE EXCLUDED FROM STATE

WORKERS COMPENSATION) AT NO COST TO THE WORKER?

15. IN CASE OF CONTRACT IMPOSSIBILITY (“ACT OF GOD”) THAT

REQUIRES TERMINATION OF EMPLOYMENT PRIOR TO THE END OF

THE CONTRACT PERIOD, PROVIDE REMAINING CONTRACT

BENEFITS, INCLUDING PAYMENT OF 3/4 GUARANTEE

OBLIGATIONS (UP TO TIME OF THE EVENT WHICH TERMINATED

THE EMPLOYMENT) AND RETURN

TRANSPORTATION/SUBSISTENCE?

16. A. AVOID REJECTING OR TERMINATING U.S. WORKERS OTHER

THAN FOR LAWFUL JOB-RELATED REASONS? AND

B. NOTIFY THE LOCAL JOB SERVICE OFFICE OF ALL REJECTIONS,

TERMINATIONS AND RESIGNATIONS OF U.S. AND/OR FOREIGN

WORKERS?

17. PROVIDE U.S. WORKERS EMPLOYED IN OR APPLYING FOR

CORRESPONDING EMPLOYMENT WAGES, BENEFITS, AND

WORKING CONDITIONS AT LEAST EQUAL TO THOSE PROVIDED

TO FOREIGN WORKERS?

18. AVOID DISCRIMINATING AGAINST WORKERS WHO COMPLAIN,

TESTIFY OR OTHERWISE EXERCISE THEIR RIGHTS?

19. AVOID CAUSING WORKERS TO WAIVE THEIR RIGHTS?

20. PERMIT DOL INVESTIGATIONS OF YOUR BUSINESS?

21. AVOID INTERFERING WITH DOL OFFICIALS WHO INVESTIGATE

YOUR BUSINESS ACTIVITIES?

22. AVOID PROVIDING FALSE INFORMATION TO DOL OFFICIALS?

23. MAKE RECORDS AVAILABLE TO DOL, THE WORKER OR THE

WORKER’S REPRESENTATIVE?

24. COMPLY WITH ALL FEDERAL, STATE AND LOCAL EMPLOYMENT-

RELATED LAWS AND REGULATIONS?

25. COMPLY WITH THE FAIR LABOR STANDARDS ACT?

26. IF YOU EMPLOY U.S. WORKERS, COMPLY WITH THE MIGRANT

AND SEASONAL AGRICULTURAL WORKER PROTECTION ACT?

IF YOU ANSWERED “YES” TO EACH QUESTION, YOU SHOULD BE IN FULL COMPLIANCE.

WHERE LAW AND BUSINESS MEET

®

An Overview of the H-2B Visa Program for Temporary Non-Agricultural Foreign Labor Workers

The H-2B nonagricultural temporary visa program allows employers to sponsor foreign workers if they can document the need is temporary and there is a shortage of able willing U.S. workers to fill the position(s).

In order to obtain an H-2B visa for a foreign national, an employer must show the following:

• The job and the employer’s need must be one time, seasonal, peak load or intermittent;

• The need must be full-time (35 hours a week) for 10 months or less (up to three years for some one-time occurrence applications); and

• There must be no qualified and willing U.S. workers available for the job.

DEFINITION OF TEMPORARY NEED

An employer must document one of the following temporary need scenarios in order to participate in the H-2B program:

1. One-time occurrence – (1) the employer has not employed workers to perform the services or labor in the past, and the employer will not need workers to perform the services or labor in the future; or, (2) the employer has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker. This one-time need may last up to three years.

2. Seasonal need – The employer must establish that the services or labor are traditionally tied to a season of the year, by a temporary event or pattern, and are of a recurring nature.

3. Peak load need – The employer must establish that it regularly employs permanent workers to perform the service or labor, and it needs to supplement its permanent staff on a temporary basis due to seasonal or short term demands with temporary employees who will not become a part of the regular operations.

4. Intermittent need – The employer must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers for short periods.

THE H-2B NUMERICAL LIMITATION

There are only 66,000 H-2B visas issued each fiscal year. USCIS releases 33,000 visas on October 1 and 33,000 visas on April 1. Due to the H-2B cap, employers should plan a date of need as close as possible to either October 1 or April 1 to ensure there are available H-2B visa numbers. Foreign workers who were previously in H-2B status in 2013, 2014, or 2015 will not be counted against the H-2B numerical limitation.

H-2B Temporary Visa Program – 2015 Interim Final Regulations


®

THE H-2B PROCESS

The H-2B procedures consist of filings with the Department of Labor (DOL), United States Citizenship and Immigration Service (USCIS), and Department of State (DOS) (processing through the DOS is only applicable if the beneficiary is outside of the United States.

Step 1. Submit H-2B Employer Registration

Once the DOL implements the H-2B Registration process, an employer must apply to obtain an H-2B Registration with the DOL before submitting the Form ETA 9142, Application for Temporary Employment Certification. Once the H-2B Employer Registration form (ETA 9155) is implemented, an employer must register no more than 150 days and no less than 120 days before date of initial need for H-2B workers unless permitted under emergency filing provisions.

As part of the registration process, the employer must provide documentation showing the number of positions the employer desires to fill in the first year of registration, the period of time for which the employer needs the workers, and that the employer’s need for the services or labor is non-agricultural and temporary.

If approved, the registration will be valid for 3 years unless there is material change.

Step 2. Submit Prevailing Wage Determination Request

The Employer must obtain a prevailing wage from the National Prevailing Wage Center (NPWC) by filing ETA Form 9141, Application for Prevailing Wage Determination. It is currently taking the DOL at least 60 days to issue a prevailing wage determination.

Step 3a. File Application for H-2B Temporary Employment Certification ETA 9142B

The new rule requires a concurrent filing of the Application for Temporary Employment Certification (ETA 9142 Application) and a job order with the appropriate State Workforce Agency (SWA) no earlier than 90 days and no later than 75 days before the date of need.

The employer can request a waiver of the required time period if there is good and substantial cause, e.g., the substantial loss of U.S. workers due to Acts of God, or a similar unforeseeable man-made catastrophic event wholly outside of the employer’s control, unforeseeable changes in market conditions, or pandemic health issues.

Step 3b. Submit SWA Job Order to State Workforce Agency for Review

Once the DOL accepts an H-2B petition for processing, the SWA is responsible for posting the job order into intra- and interstate clearance. The SWA will keep the approved job order on its active file until 21 days before the date of need. The SWA will also contact the union, where the occupation or industry is customarily unionized. The NPC will place a copy of the job order posted by the SWA on the DOL’s electronic job registry until 21 days before the date of need.


®

Step3c. Conduct Recruitment After DOL Issues Notice of Acceptance

In addition to the Office of Foreign Labor Certification (OFLC) maintaining the job posting on its registry and the SWA job posting, employers must continue to accept referrals of all U.S. applicants interested in the position until 21 days before the date of need. In addition, the employer must take the following steps: publish two newspaper ads (one in a Sunday edition), contact former U.S. employees, and post a Notice of Filing unless there is a bargaining representative.

Step 4. File I-129, Petition for Nonimmigrant Worker After DOL H-2B Certification

Once the DOL certifies the H-2B application, the employer will file Form I-129, “Petition for a Nonimmigrant Worker,” with the USCIS Service Center that has jurisdiction in the area where the services will be performed.

The petition is only valid for the period indicated on the approved labor certification. The “start date” listed on the labor certification must match the “start date” listed on the I-129 petition. The foreign employee can only enter the U.S. pursuant to an approved H-2B petition once he obtains a nonimmigrant visa (unless the individual is a citizen of Canada). The beneficiary may be admitted to the United States for the validity period of the petition, PLUS a period of up to 7 days before the validity period begins and 10 days after the validity period ends. If a visa is not required, the H-2B approval notice may be presented at the port-of-entry by the beneficiary to obtain entry into the United States in H-2B status.

Employers may hire H-2B workers only from countries that are included on USCIS’ List of H-2B Countries unless they receive permission from the USCIS for an excluded country.

Step 5. Visa Applications for Beneficiaries Outside the U.S.

An H-2B employee who is outside of the U.S. must apply for an H-2B visa by filing an application (DS-160) to enter the U.S. to work pursuant the approved H-2B petition.

H-2B employers must pay for all legal and administrative fees related to the H-2B visa application and the cost of transportation to the U.S. and back to the home country after the contract is completed.

FAQs on H-2B FEES AND COSTS

Q1: Can an H-2B employee pay an H-2B employer, recruiter or any third-party a fee or compensation as a condition for employment?

A1: No. An H-2 employer cannot collect or enter into an agreement to collect a fee or compensation from the employee as a condition of employment. Additionally, the employee cannot pay or agree to pay any facilitator, recruiter, or similar employment service as a condition of obtaining the H-2A employment. Prohibited fees include recruitment fees, attorneys’ fees, and fees for preparation of visa applications.

Q2: Can an H-2B employee enter into an agreement with an attorney to file visa applications for spouses and children and related visa or government imposed fees related to the family members?


®

A2: Yes, there are no restrictions concerning the employee’s payment of attorney fees, fees for the preparation of visa application, or visa and other government imposed fees for dependent family members. Such legal arrangements should only be entered into between the employee and legal counsel.

Q3: Can an H-2B employer transfer the costs relating to the payment of transportation and visa or other related government-imposed fees related to the H-2B visa application to the H-2B employee?

A3: No, the employer must be responsible for inbound and outbound transportation and daily subsistence-including meals and lodging. This also extends to corresponding U.S. applicants hired who come from far enough away that is not reasonable to return home each day. The employer may fulfill this obligation by arranging and paying directly for it or reimbursing the employee during the last workweek of employment.

Q5: Can H-2B employees hire their own attorneys to assist with their visa applications?

A5: There is no prohibition against H-2B employees retaining their own attorneys to represent their interests or to assist them in completing visa applications. The legal arrangements should only be entered into between the H-2 employees and legal counsel and should clearly state that the legal counsel does not represent any interests of the employer. This is tricky, because arguably the H-2 visas are for the benefit of the employer.

Q6: Can an H-2B employee be required to pay the fees and costs related to obtaining a passport?

A6: Yes, all authorities agree that the employee can be responsible for the fees and costs related to obtaining a passport as the employee can use it for benefits other than H-2B employment.

For further information regarding the H-2B temporary visa program for non-agricultural worker or H-2A temporary visa program for agricultural worker, please contact Loan Huynh.

Loan T. Huynh shareholder

[email protected] 612.492.7165 Assistant: Maiyia Vang [email protected] 612.492.7617


H-2B Compliance Checklist

H-2B Workers can work:

• Only for you;

• Only at the location(s) named;

• Only performing the activity described in the petition;

• Only at the stated rates of pay; and

• Only during the stated time period.

Under the H-2B program, the employer must provide the same H-2B wage and benefits to U.S. workers

in corresponding employment. Corresponding workers are defined as non-H-2B workers employed by an

employer that has a certified Application who perform either substantially the same work included in the

job order or substantially the same work performed by the H-2B workers.

Once the H-2B petition has been granted, the regulations impose additional responsibilities on H-2B

petitioners. These responsibilities include notifying DHS of certain occurrences related to their H-2B

workers, as discussed below.

A. H-2B Employer Obligations/Assurances

An employer employing H-2B workers and/or workers in corresponding employment under a labor

certification application has agreed as part of the application that it will abide by the following conditions

with respect to its H-2B workers and any workers in corresponding employment:

a. Rate of pay.

• The employer must pay at least the offered wage indicated on the Application, which equals or

exceeds the highest of the prevailing wage, Federal minimum wage, State minimum wage, or

local minimum wage, for all hours worked during the entire period of the job order, and must pay

those wages free and clear.

• If workers are paid based on piece-rates, commissions, bonuses, or other incentives, the employer

guarantees a wage earned every workweek that equals or exceeds the offered wage.

• If the employer requires one or more minimum productivity standards of workers as a condition

of job retention, the standards must be specified in the job order and must be normal and usual for

non-H-2B employers for the same occupation in the area of intended employment. The use of

productivity standards cannot result in workers being paid less than the offered wage.

• An employer paying on a piece-rate basis must pay a piece rate that is no less than the normal rate

paid by non-H-2B employers for workers performing the same activity in the area of intended

employment. The average hourly piece rate earnings must result in an amount at least equal to

the offered wage. If the worker is paid on a piece rate basis and at the end of the workweek the

piece rate earnings are less than the amount the worker would have earned had the worker been

paid at the offered hourly rate, then the employer must supplement the worker's weekly earnings

at that time so they at least equal the amount the employee would have earned at the offered

hourly wage rate for each hour worked.

b. Wages free and clear.

• This payment requirement for wages can be satisfied by the timely payment of wages in cash or

negotiable instrument payable at par. The payment must be made finally and unconditionally and

“free and clear”, without unauthorized deductions or kickbacks to the employer.

c. Deductions.

• The employer must make all deductions from workers' paychecks required by law. Other

additional deductions must be reasonable and must be disclosed in the job order. Deductions that

are not disclosed are prohibited. Whether deductions are reasonable is determined under the

principles in 29 CFR Part 531. The wage requirement will not be met where unauthorized

deductions, deposits, rebates, or refunds reduce the wage payment below the offered wage or

where the worker "kicks back" any part of the wages to the employer or another person for the

employer's benefit.

d. Job opportunity.

• The job opportunity must be a bona fide, full-time, temporary position of at least 35 hours per

workweek. An employee’s workweek must be a fixed and regularly recurring period of 168

hours—seven consecutive 24-hour periods.

e. Job qualification and requirements.

• The qualifications and requirements for the job must be listed in the job order and must be

consistent with the normal and accepted qualifications and requirements imposed by non-H-2B

employers in the same occupation and geographic area.

f. Three-fourths guarantee.

• The employer must guarantee to offer the workers employment for a total number of work hours

equal to at least 75% of the workdays in each 12-week period (or each 6-week period if the job

order is less than 120 days). This is the "three-fourths guarantee." The guarantee period begins

with the first workday after the worker arrives at the place of employment or the advertised first

date of need, whichever is later, and ends on the last day of the job order. If during any 12- or 6-

week period, the employer does not offer H-2B or corresponding workers sufficient hours to meet

the three-fourths guarantee, the employer must pay such workers the amount they would have

earned had they actually worked for the guaranteed number of workdays.

g. Impossibility of fulfillment.

• If, before the end of the job order, the services of a worker are no longer required for

unforeseeable reasons beyond the control of the employer (for example, fire, weather, other Act

of God, or similar, man-made catastrophic events), the employer may terminate the job order with

approval of the Certifying Officer. If a termination is approved, the employer must: (a) fulfill the

three-fourths guarantee to the time of termination; and (b) make efforts to transfer the workers to

comparable employment consistent with the INA by, for example, contacting the State Workforce

Agencies or searching the national job registry. If the worker is not transferred, the employer

must provide the worker return transportation to the place from which the worker departed to

work, disregarding intervening employment.

h. Frequency of pay.

• H-2B employers must pay wages at least every two weeks or according to the prevailing practice

for that occupation in the area of employment, whichever is more frequent. The employer must

state in the job order the frequency with which the worker will be paid. Employers must pay all

wages when due.

i. Earning statements.

• The employer must keep accurate records of workers' earnings, hours of work offered, and hours

actually worked.

• The employer must furnish to the worker on or before each payday in one or more written

statements the following information: (i) The worker’s total earnings for each workweek in the

pay period; (ii) The worker’s hourly rate and/or piece rate of pay; (iii) For each workweek in the

pay period the hours of employment offered to the worker (showing offers in accordance with the

three-fourths guarantee, separate from any hours offered over and above the guarantee); (iv) For

each workweek in the pay period the hours actually worked by the worker (e.g. start and stop

times); (v) An itemization of all deductions made from or additions made to the worker’s wages;

(vi) If piece rates are used, the units produced daily; (vii) The beginning and ending dates of the

pay period; and (viii) The employer’s name, address and FEIN.

j. Transportation and visa fees.

• The employer must either advance all visa, border crossing, and visa-related expenses to H-2B

workers, pay for them directly, or reimburse all such expenses in the first workweek.

• The employer must disclose how it will provide inbound transportation and subsistence costs

(lodging incurred on the employer's behalf and meals) in the job order. The employer will either

advance all transportation and subsistence expenses to workers traveling to the employer's

worksite, pay for them directly, or reimburse the expenses no later than the time workers

complete 50 percent of the period covered by the job order. The employer may be obligated

under the FLSA to reimburse workers for their inbound transportation during the first workweek

to the extent that the travel costs they incurred would bring workers below the Federal minimum

wage. This provision applies to H-2B workers and to workers in corresponding employment who

travel from far enough away to the worksite that it is not reasonable for them to return home

every day.

• The employer must pay for the return transportation and daily subsistence (if the workers have no

immediate subsequent H-2B employment) for any workers who work until the end of the job

order or are dismissed from employment for any reason before the end of that period.

• All employer-provided transportation must comply with all applicable Federal, State, or local

laws and regulations.

k. Employer-provided items.

• The employer must provide to workers, without charge or deposit, all tools, supplies, and

equipment required to perform the duties assigned.

l. Disclosure of job offer.

• All H-2B and corresponding workers must be provided with a copy of the job order. H-2B

workers located abroad must receive the job order no later than when they apply for a visa. H-2B

workers already in the country must receive the job order no later than when the job offer is

made. Corresponding workers must receive the job order no later than the day work starts. The

disclosure of these documents must be provided in a language understood by the worker, as

necessary or reasonable.

m. Notice of worker rights.

• The employer must post a DOL-provided poster in English detailing H-2B and corresponding

workers' rights and protections in a conspicuous location at each worksite. The employer must

post additional posters if a significant portion of workers are not fluent in English and if DOL

provides the poster translated into their language.

n. No unfair treatment.

• The employer must not (and must not cause another person to) discharge or discriminate against

any person who participates in any protected activity such as filing a complaint; testifying;

consulting with a workers' center, community organization, labor union, legal assistance program

or attorney; or exercising or asserting any right or protection under the INA, DHS regulations, or

DOL regulations.

o. Comply with the prohibitions against employees paying fees.

• The employer and its attorney, agents and/or employees must not seek or receive payment of any

kind from the H-2B worker for any activity related to obtaining employment certification,

including but not limited to payment of the employer's attorney or agent fees, application or DHS

petition fees, or recruitment costs. Payment includes, but is not limited to, monetary payments,

wage concessions (including deductions from wages, salary, or benefits), kickbacks, bribes,

tributes, in kind payments, and free labor.

p. Contract with third parties to comply with prohibitions.

• The employer must contractually forbid in writing any agent or recruiter (or any employee of

such agent or recruiter) whom the employer engages, directly or indirectly, in international

recruitment of H-2B workers to seek or to receive payments or other compensation from

prospective workers.

The employer and its attorney and/or agent must provide the Department:

• a copy of all agreements with any agent or recruiter whom it engages or plans to engage in the

international recruitment of H-2B workers, and

• the identity and location of all persons or entities hired by or working for the agent or recruiter,

and any of their agents or employees, to recruit prospective foreign workers for the H-2B job

opportunities offered by the employer.

q. Prohibition against preferential treatment of foreign workers.

• The employer must not offer terms, wages, and working conditions to U.S. workers that are less

favorable than what the employer offers or provides to H-2B workers. Also, the employer must

not impose restrictions or obligations on U.S. workers that are not imposed on H-2B workers.

r. Non-discriminatory hiring practices.

• The job opportunity must be open to any qualified U.S. worker regardless of race, color, national

origin, age, sex, religion, handicap, or citizenship. U.S. workers who apply for the job may be

rejected only for lawful, job-related reasons, and the employer must retain records of all

rejections.

s. Recruitment requirements.

• In order to find qualified and available U.S. workers to perform the labor in the job order, the

employer must conduct all required recruitment activities according to the regulations.

t. Continuing requirement to hire U.S. workers.

• The employer must also continue to accept State Workforce Agency referrals and hire all

qualified and eligible U.S. workers who apply for the job until 21 days before the job order starts.

u. No strike or lockout.

• There must be no strike or lockout at any of the employer's worksites within the area of intended

employment for which the employer is requesting an H-2B certification.

v. No recent or future layoffs.

• The employer must not lay off any similarly-employed U.S. worker in the occupation and area of

intended employment from 120 days before the start of the job order through the end of the job

order, unless all H-2B workers are laid off first.

w. Contact with former U.S. employees.

• The employer will contact (by mail or other effective means) its former U.S. workers, including

those who have been laid off within 120 calendar days before the date of need (except those who

were dismissed for cause or who abandoned the worksite), employed by the employer in the

occupation at the place of employment during the previous year, disclose the terms of the job

order, and solicit their return to the job.

x. Area of intended employment and job opportunity.

• The employer must not place any H-2B workers outside the area of intended employment or in an

occupation not listed on the approved Application, unless the employer obtains a new approved

Application from DOL.

y. Abandonment/termination of employment.

• The employer must notify DOL if any H-2B or corresponding worker separates from the job for

any reason before the end of the job order. The notification must be made in writing and no later

than 2 days after the separation is discovered by the employer. Similarly, the employer must also

notify DHS of such separation of an H-2B worker. Please contact Fredrikson & Byron if a

separation occurs.

z. Compliance of applicable laws.

• During the period of employment certified on the Application, the employer must comply with

applicable Federal, State and local employment-related laws and regulations including, but not

limited to, employment-related health and safety laws. In addition, the employer and its agents

and attorneys are prohibited from knowingly holding, destroying, or confiscating workers'

passports, visas, or other immigration documents pursuant to 18 U.S.C. 1592(a).

The employer must cooperate with any agent of the Secretary of Labor who is exercising or

attempting to exercise DOL's authority pursuant to 8 U.S.C. 1184(c).

Posting Obligation: You must post and maintain in a conspicuous location at the place of employment,

posters provided by the Secretary of the Department of Labor in English, and to the extent necessary, any

language common to a significant portion of the workers if they are not fluent in English, which sets out

the rights and protections for workers. Copies of the posters are available at

http://www.dol.gov/whd/resources/posters.htm.

B. Employment-Related Notifications.

The regulations require H-2B petitioners to provide notification to ETA and DHS within 2 work days in

the following instances:

When an H-2B worker fails to report to work within 5 work days of the employment start date on the

H-2B petition;

When the temporary labor or services for which H-2B workers were hired is completed more than 30

days early; or

When the H-2B worker absconds from the worksite or is terminated prior to the completion of the

temporary labor or services for which he or she was hired.

The regulations also require that petitioners retain evidence of the notification filed with DHS for a one-

year period beginning from the date of the notification.

The petitioner must include the following information in the notification.

(1) The reason for the notification;

(2) The reason for late notification, if applicable;

(3) The USCIS receipt number of the approved H-2B petition;

(4) The petitioner's name, address, telephone number, and employer identification number (EIN);

(5) The employer's name, address, and telephone number, if it is different from that of the petitioner;

(6) The name of the applicable H-2B worker;

(7) The date and place of birth of the subject H-2B worker; and

(8) The last known physical address and telephone number of the subject H-2B worker.

If all of the above information is not available, the employer must provide as much and as complete

information as possible. USCIS acknowledges that petitioners may not know the names of the no-show

H- 2B workers if the workers are unnamed beneficiaries of the H-2B petition. Where an H-2B petitioner

is reporting the failure of an H-2B worker to report to work within the prescribed time frame and the

beneficiaries are unnamed, the petitioner must supply the number of workers who failed to report to work

within the prescribed time frame, plus any of the additional items above that may be known or available.

Notices from employers should be provided to USCIS and ETA by e-mail. If the H-2B petition was

approved by California Service Center: [email protected]. If the H-2B petition was approved

by Vermont Service Center: [email protected]. ETA should be notified at:

[email protected]. Please contact Fredrikson & Byron before sending any correspondence to the

Department of Labor or immigration service.

http://www.dol.gov/whd/resources/posters.htm

mailto:[email protected]



C. Fee-Related Notifications.

The regulations prohibit payment or agreement to pay a fee or other compensation by a beneficiary to any

facilitator, recruiter, or similar employment service as a condition of the offer of obtaining the H-2B

employment. However, the regulations provide petitioners with the opportunity to avoid denial or

revocation (on notice) of their H-2B petition if they notify DHS regarding information they obtained

following the filing of their H-2B petition concerning the beneficiary's payment of prohibited fees to a

third party including but not limited to a recruiter or agent. Notification of a beneficiary's payment or

agreement to pay the prohibited fees must be made within 2 work days of the petitioner gaining such

knowledge.

The notification must include the following information:

(1) The USCIS receipt number of the H-2B petition;

(2) The petitioner's name, address, and telephone number;

(3) The employer's name, address, and telephone number, if it is different from that of the petitioner;

and

(4) Name and address of the facilitator, recruiter, or placement service to which alien beneficiaries

paid or agreed to pay the prohibited fees.

The petitioner should submit notices to USCIS by e-mail. If the H-2B petition was approved by

California Service Center: [email protected]. If the H-2B petition was approved by Vermont

Service Center: [email protected].

D. Notice of Departure to Workers.

• You must inform H-2B workers that they must leave the U.S. at the earlier of – the end of the

period certified or separation from Employer. (The departure requirement does not apply if the

H-2B worker is being sponsored by another subsequent employer.)



Employer’s Guide For Immigration Worksite

Enforcement Visits

A. Know Your Rights – Immigration Worksite Enforcement Visits

1. Employer – Rights and Responsibilities

2. Employee – Rights and Responsibilities:

a. Work Place

b. Public Space

c. Home

B. Employer Compliance Guidance

1. Immigration Corporate Compliance Plan

2. SSA “No-Match” Guidance Memo

3. I-9 Fast Facts and Anatomy of the I-9 Investigation Process

C. Employer Guidelines for Worksite Enforcement Visits and Investigations

1. GuidelinesWhenSpeakingtoGovernmentOfficials

2. Template for Recording Meeting with ICE/DOL Visits

D. FAQs and Other Resource Materials

Table of Contents


Know Your Rights – Immigration Worksite Enforcement Visits

SECTION A

Employer – Rights and Responsibilities

A1

Whenitcomestoanimmigrationworksiteraid,preparationiscritical.Evenifyouaremeticulousinconfirmingtheworkauthorization of all of your employees, Immigration and Customs Enforcement (ICE) could investigate your workplace in connection with a lead or complaint, or based on other factors. If you do not have a worksite enforcement action plan in place, consult with your immigration attorney or seektheadviceofaqualifiedimmigrationattorney so that in the event ICE makes an unannounced visit, you and your employees are ready. But in the meantime, if ICE comes to your work place, be aware of the following:

• Call Your Lawyer. When ICE arrives at your worksite, call your lawyer immediately. The receptionist or company representativeshouldtelltheofficers,“OurcompanypolicyistocallourlawyerandI’mdoingthatnow.”YourlawyermaybeabletocometotheworksitequicklytoassistorspeaktotheICEofficersoverthephone.

• Scope of Operation. Immigrationofficersarefreetoenteranypublicareasofyourworkplace,butmusthaveavalidsearch warrant or your consent to enter non-public areas.

º A valid warrant must be signed and dated by a judge. It will include a time frame within which the search must be conducted, a description of the premises to be searched, and a list of items to be searched for and seized (e.g., payroll records,employeeidentificationdocuments,I-9forms,SSAcorrespondence,etc.).

º An agent will serve the search warrant on a receptionist or company representative and alert other agents to enter.

º Yourcompanycanacceptthewarrantbutnotconsenttothesearch.Ifyoudonotconsenttothesearch,thesearchwillproceed but you can later challenge it if there are grounds to do so.

º Depending on the type of business, ICE may demand that equipment be shut down and that no one leave the premises without permission.

º ICE may move employees into a contained area for questioning.

º While some agents question employees, others will likely execute the search and seizure of items listed in the warrant.

• Employer Rights and Responsibilities. Employers have a number of rights and responsibilities during an ICE worksite raid:

º If a search warrant is presented, examine it to ensure that it is signed by the court, that it is being served within the permitted time frame, and that the search is within the scope of the warrant – the area to be searched and the items to be seized. Be sure to send a copy of the warrant to your attorney.

º Write down the name of the supervising ICE agent and the name of the U.S. attorney assigned to the case.

º Have at least one company representative follow each agent around the facility. The employee may take notes or videotapetheofficer.Noteanyitemsseizedandaskifcopiescanbemadebeforetheyaretaken.IfICEdoesnotagree, you can obtain copies later.

º If agents presented a valid search warrant and want access to locked facilities, unlock them.

º Request reasonable accommodations as necessary. If agents insist on seizing something that is vital to your operation, explain why it is vital and ask for permission to photocopy it before the original is seized. Reasonable requests are usually granted.

º Do not block or interfere with ICE activities or the agents. However, you do not have to give the agents access to non-public areas if they did not present a valid search warrant.

º Object to a search outside the scope of the warrant. Do not engage in a debate or argument with the agent about the scope of the warrant. Simply present your objection to the agent and make note of it.

ICE Worksite Raid: Employer Rights and Responsibilities


https://www.ailalawyer.com

º Protect privileged materials.

• If agents wish to examine documents designated as attorney-client privileged material (such as letters or memoranda to or from counsel), tell them they are privileged and request that attorney-client documents not be inspected by the agents until you are able to speak to your attorney.

• If agents insist on seizing such documents, you cannot prevent them from doing so. If such documents are seized, try to record in your notes exactly which documents were taken by the agents.

º Ask for a copy of the list of items seized during the search. The agents are required to provide this inventory to you.

º Company representatives should not give any statements to ICE agents or allow themselves to be interrogated before consulting with an attorney.

º YoumayinformemployeesthattheymaychoosewhetherornottotalkwithICE,butdonotdirectthemtorefusetospeak to agents when questioned.

º Do not hide employees or assist them in leaving the premises. Do not provide false or misleading information, falsely deny the presence of named employees, or shred documents.

º Don’tforgetthehealthandwelfareofyouremployees.Enforcementactionscansometimeslastforhours.Ifanemployee requires medication or medical attention or if employees have children who need to be picked up from school,communicatetheseconcernstotheICEofficers.

• Employees Have the Right to Remain Silent and the Right to an Attorney. Ask if your employees are free to leave. If they are not free to leave, they have a right to an attorney. Though you should not instruct your employees to refuse to speak to ICE, they also have the right to remain silent and do not need to answer any questions.

º Youremployeesdonotneedtoanswerquestionsabouttheirimmigrationstatus,wheretheywereborn,orhowtheyentered the United States. They may exercise their right to remain silent and may ask to speak to an attorney.

º IfICEtriestodetermineyouremployees’immigrationstatusbyaskingthemtostandingroupsaccordingtostatus,they do not have to move, or they can move to an area that is not designated for a particular group.

º They may also refuse to show identity documents that disclose their country of nationality or citizenship.

º If your employees are detained or taken into custody, be sure that their families are contacted and any money owed to the employees is paid.

• Post-Raid Issues. The investigation does not end after ICE leaves the premises. ICE and the U.S. Attorney will thoroughly review the items seized during the raid and the investigation, including undercover surveillance, can continue for many months.

ICE is not the only law enforcement agency that can visit or conduct an enforcement action against your worksite. The Department of Labor may also conduct an investigation, and in some jurisdictions, state and local police can act on behalf of ICE in an operation. For more information about your rights and responsibilities as an employer in the event of an ICE raid or otherenforcementactionorinvestigationatyourworkplace,speaktoaqualifiedimmigrationlawyer.

Employers should contact their legal counsel or the immigration attorneys at Fredrikson & Byron, P.A. at 612.492.7648 for more information and a full legal analysis.

The contents of this document do not constitute legal advice.

The content on this “ICE Worksite Raid: Employer Rights and Responsibilities” document was prepared by AILA, the American Immigration Lawyers Association.

fredlaw.comAddress 200 South Sixth Street, Suite 4000Minneapolis, Minnesota 55402-1425

Offices USA / China / MexicoMinnesota, Iowa, North Dakota

MainFax

612.492.7000612.492.7077

Employee – Rights and Responsibilities:a. Work Place b. Public Space c. Home

A2

All people living in the United States, including undocumented immigrants, have certain U.S. Constitutional rights. If immigration officers (ICE) come to your work place, they must have a valid search warrant or the consent of your employer to enter non-public areas. If you are undocumented and immigration officers come to your work place, be aware of the following:

• Do not panic and do not run away. If you are frightened and feel like you need to leave, you can calmly walk toward the exit.

o If you are stopped, you may ask if you are free to leave. If the officer says no, do not try to exit the building.

o If you are questioned, you may tell them you want to remain silent.

• You have the right to remain silent. You do not need to speak to the immigration authorities or answer any questions.

o If you are asked where you were born, or how you entered the United States, you may refuse to answer or remain silent.

o If you choose to remain silent, say so out loud.

o If they ask you to stand in a group according to immigration status, you do not have to move, or you can move to an area that is not designated for a particular group.

o You may show a know-your-rights card to an officer that explains that you will remain silent and wish to speak to a lawyer.

o You may refuse to show identity documents that say what country you are from.

o Do not show any false documents and do not lie.

• You have the right to speak to a lawyer. If you are detained or taken into custody, you have the right to immediately contact a lawyer.

o Even if you do not have a lawyer, you may tell the immigration officers that you want to speak to one.

o If you have a lawyer, you have the right to talk to them. If you have a signed Form G-28, which shows you have a lawyer, give it to an officer.

o If you do not have a lawyer, ask an immigration officer for a list of pro bono lawyers.

o You also have the right to contact your consulate. The consulate may be able to assist you in locating a lawyer.

o You can refuse to sign any/all paperwork until you have had the opportunity to speak to a lawyer.

o If you choose to sign something without speaking to a lawyer, be sure you understand exactly what the document says and means before you sign it.

Know Your Rights: If ICE Comes to Your Work Place (Employee)

©2017 American Immigration Lawyers Association #AILAStandsWithImmigrants


If you want more information about your rights or to learn if you might be eligible for immigration benefits or relief, speak to a reputable immigration lawyer. Go to www.ailalawyer.org to connect with a lawyer in your area.

https://www.nilc.org/issues/immigration-enforcement/everyone-has-certain-basic-rights/

https://www.uscis.gov/g-28

http://www.ailalawyer.org

All people living in the United States, including undocumented immigrants, have certain U.S. Constitutional rights. If you are undocumented and immigration (ICE) officers stop you on the street or in a public place, know you have the following rights:

• You have the right to remain silent. You do not need to speak to the immigration officers or answer any questions.

o You may ask if you are free to leave. If the officer says no, you may exercise your right to remain silent.

o If you are asked where you were born or how you entered the United States, you may refuse to answer or remain silent.


o You may show a know-your-rights card to the officer that explains that you will remain silent and wish to speak to an attorney.



• You may refuse a search. If you are stopped for questioning but are not arrested, you do not have to consent to a search of yourself or your belongings, but an officer may “pat down” your clothes if he or she suspects you have a weapon.


o Even if you do not have a lawyer, you may tell the immigration officers that you want to speak to a lawyer.

o If you have a lawyer, you have the right to talk to them. If you have a signed DHS Form G-28, which shows you have a lawyer, give it to an officer.





Know Your Rights: If ICE Stops You in Public







All people living in the United States, including undocumented immigrants, have certain U.S. Constitutional rights. If you are undocumented and immigration (ICE) agents knock on your door, know that you have the following rights:

• You do not have to open the door. You do not have to open the door or let the officers into your home unless they have a valid search warrant signed by a judge.

o An ICE deportation warrant is not the same as a search warrant. If this is the only document they have, they cannot legally come inside unless you verbally agree to let them in.

o If the officers say they have a search warrant signed by a judge, ask them to slide it under the door or hold it up to a window so you can see it.

o If the warrant does not have your correct name and address on it and is not signed by a judge you do not have to open the door or let them inside.

o If at any point you decide to speak with the officers, you do not need to open the door to do so. You can speak to them through the door or step outside and close the door.

• You have the right to remain silent. You do not need to speak to the immigration officers or answer any questions.

o If you are asked where you were born or how you entered the United States, you may refuse to answer or remain silent.


o You may show a know-your-rights card to the officer that explains that you will remain silent and wish to speak to a lawyer.




o Even if you do not have a lawyer, you may tell the immigration officers that you want to speak to one.

o If you have a lawyer, you have the right to talk to them. If you have a signed Form G-28, which shows you have a lawyer, give it to an officer.





Know Your Rights: If ICE Visits Your Home







Employer Compliance Guidance

Section B

Immigration Corporate Compliance Plan

B1

TheDepartmentofHomelandSecurity’s(DHS)focusonemployersandemployersanctionsaspartofitsimmigrationenforcement strategy requires all employers to establish an effective I-9 and immigration compliance and audit policy and an immigration worksite enforcement response plan.

Companies have different cultures, resources and needs, and it is important to take these into consideration when establishingacomprehensivecorporateimmigrationcomplianceplan.Whilethereisno“onesizefitsall”strategy,employersmust address the following in order to develop an effective Corporate Immigration Compliance Program:

• Is there currently an effective I-9 policy?

• Is there a Social Security Administration “No-Match” Policy?

• IstheSocialSecurityNumberVerificationSystemusedandhowisitused?

• Has the company registered with E-Verify, and if not, should it?

• Has the company registered with IMAGE, and if not, should it?

• Areforeignworkerssponsored?Ifyes,arecompliancefilesmaintained?

• If you use subcontractors, are they in compliance with their I-9 obligations?

A. Is There an Effective I-9 Policy? An effective I-9 policy should include at minimum the following:

1. An Overall I-9 Compliance Administrator. An I-9 compliance administrator should be designated. This person should be charged with centralized oversight, management and training regarding the compliance program. It is crucial that a culture of compliance is created within the company.

2. Integration with the Overall Personnel Policy, Materials and Applications. The I-9 policy should be in writing, published and communicated to the entire workforce.

3. Overall Guidance on I-9 Procedures. The policy must state that the company:a. Requires the proper and timely completion and retention of Forms I-9 for all employees hired after November 6,

1986;b. Will not hire individuals who do not provide the requisite and timely identity and employment eligibility documents;c. ConductstimelyI-9reverification;andd. Holds regular I-9 trainings for all company representatives who are part of the recruitment, orientation and hiring

processes for the company.

4. Clarification to All Company Employees Who Have Hiring Authority or Are Part of the Hiring Process Concerning:a. Who must complete Form I-9;b. Whenverificationmustbecompleted;c. What questions may be lawfully asked prior to the actual offer of employment;d. What limits may be placed on the hiring of certain individuals; ande. TowhomemployeesshouldbereferredforguidanceandassistanceonI-9verificationprocedures.

5. Guidance on I-9 Verification for Employees Charged with the Implementation of I-9 Procedures.a. How an I-9 must be properly completed, including the appropriate use of List A, B and C documents;b. When further inquiry is appropriate;c. What, how and for how long I-9 records should be maintained;d. Whether it is company policy for the I-9 support documents to be copied;e. Whethertomaintainpaperfilesorelectronicsignatureandstorage;

Guidance on Establishing a Corporate Immigration Compliance Plan


f. WheretheI-9filesshouldbemaintained;g. WhenI-9sneedtobereverifiedanddocketingproceduresforreverification;h. When the I-9 compliance administrator or legal counsel should be consulted; andi. When and how to process the I-9 through E-Verify, if registered with E-Verify.

6. Clear Instructions for Internal I-9 Audits. To ensure compliance and mitigate damages, the company should conduct, or arrange for legal counsel to conduct, regularly scheduled, random or tip-based internal I-9 audits. Periodic I-9 audits may also serve as training opportunities for company personnel.

B. Does the Company Have an SSA No-Match Policy?

DHScommonlyrequests“no-match”lettersandevaluatesanemployer’sresponseaspartofanI-9audit.Accordingly,theComplianceProgramshouldincludeastatementregardingitspolicyonSSA“no-match”letters.Specificfollow-upactionshould be taken whenever “no-match” letters are received.

In developing its “no-match” policy, an employer should take the following into consideration:

1. Do Not Jump To Conclusions. An employee should not be terminated solely on the basis of a “no-match” letter. An employer may terminate an employee for employment eligibility violations only if the employer has actual or constructive knowledge that an employee is unauthorized to work in the United States. A “no-match” letter alone does not constitute actual or constructive knowledge.

2. Consult with Legal Counsel. A “no-match” letter should never be ignored. We recommend that an employer confer with counsel in determining their procedures upon receipt of a SSA “No-Match” letter.

C. Is the Social Security Number Verification System Used?TheSocialSecurityNumberVerificationSystem(SSNVS)isanonline tool which allows employers to verify the names and social security numbers of its employees. The SSNVS policy should clearly state that any use of the SSNVS is for the exclusive purpose of ensuring that the employer meets its W-2 reporting responsibilities. Please note that if you use SSNVS and a no-match is received, further inquiry is required, and it must not be ignored.

D. Should the Company Register with E-Verify? E-Verify is a web-based program that allows employers to electronically verify information provided on the Form I-9, including social security numbers, with databases of the SSA and DHS. Certain federal contractors are required to register with E-Verify. In addition, employers with multi-state operations must check as to whether any of the states in which it has operations mandate the use of E-Verify. Unless or until employers are absolutely required to participate, they should exercise caution when considering E-Verify registration. E-Verify requires employerstoenterintoaMemorandumofUnderstanding(MOU)withtheSSAandtheDHSandimposessignificantobligations and liabilities.

E. Are Foreign National Workers Sponsored for Non-Immigrant or Immigrant Visas?Ifyes,arecompliancefilesmaintained? Employers should include in their compliance program at least an annual audit of all immigration-related applicationsandpetitions,whichatminimum,shouldconsistofareviewofallPERMAuditFilesandH-1Bfilingsalongwith the LCA Public Access Folders. Just as a worksite investigation can turn into a DOL audit, a DOL audit or USCIS investigation can easily turn into a criminal worksite investigation.

The Immigration & Customs Enforcement (ICE) Worksite Investigation Response PlanEmployers should be armed with a worksite investigation response plan. The response plan should include action items in case of an I-9 audit, the execution of an outstanding warrant of removal for a particular employee and a full-blown worksite investigation.

F. A Worksite Investigation Response Plan should include the following:

a. Instructions to employees not to provide any documentation, information or consent to enter the restricted areas of the worksite to ICE unless there is a judicial warrant issued, and, if possible, to do so only under the supervision of legal counsel or designated contact;

b. ThedesignationofonecentralpointofcontactforICEoranyothergovernmentagency.Thenameofthecompany’sappointed representative for the investigation and any related matters should be given as soon as contact is made with the company;

c. Thenameandcontactinformationoflegalcounsel.Ifthecompany’slegalcounselisnotin-house,thereshouldbewritten instructions for personnel to contact outside counsel immediately;

d. ThenameofcompanyofficialstonotifyimmediatelyoftheICEinvestigationoraudit;

e. Key management employees should be informed of any government investigation unless their knowledge is in conflictwiththeinterestsofthecompany;and

f. Name and contact information of public relations consultant to assist the company in response to press requests and coverage of the investigation.

One of the most dangerous aspects of any worksite investigation is the lack of control an employer has over its employees and the chaos that can ensue once ICE enters the worksite. Employers must be prepared for any government investigation, whether it is by ICE or another agency. In addition to establishing the Audit/Investigation Response Plan, employers can hold worksite investigation training sessions to educate employees about their rights during an investigation.

Please contact the Fredrikson & Byron Immigration Team at 612.492.7648 for additional information.



MainFax

612.492.7000612.492.7077

SSA “No-Match” Guidance Memo

B2

Social Security Administration “No-Match” Letters:

A GUIDE TO RESPONDING

fredlaw.com

As of March 2019, the Social Security Administration (SSA) resumed sending “no-match” letters to employers. The “no-match”lettersaresentwhenanemployerhassubmittedincompleteinformationorwhenanemployee’snameandsocial security number, as reported on wage reporting and tax statements, do not match SSA records. Employers who receive “no-match” letters should carefully read and follow the guidance provided by the SSA.

Responding to SSA “no-match” letters can be complex due to its intersection with IRS reporting requirements and I-9 employmenteligibilityverificationinvestigations.AnyconsiderationsoractionstakenbeyondwhatisprovidedbySSAinitsguidance should be carefully considered with guidance provided by legal counsel.

DO NOT JUMP TO CONCLUSIONSTherecouldbemanyreasonswhyanemployee’ssocialsecurityinformationmaynotmatchupwithSSAdata.Anemployershould not presume that the employee is unauthorized to work in the US or provided false information. The “no-match” may be due to:

• A typographical or clerical error made on Form W-2 or Form W-4;

• Theworker’snamechangingduetomarriage,divorceorsomethingelse;

• Information provided on either Form W-2 or Form W-4 being incomplete or incorrect; or,

• Inaccurate or incomplete employer records.

An employer may terminate an employee for employment eligibility violations only if the employer has actual or constructive knowledge that an employee is unauthorized to work in the United States. A “no-match” letter alone does not constitute actual or constructive knowledge.

SOCIALSECURITYADMINISTRATION’SGUIDANCEIntherecent,updated“no-match”letter,theSSAprovidesspecificguidanceandresourcestoemployersastohowtheyshould follow up. This includes providing a link to an SSA portal with extensive resources for employers including an outline of the steps employers should take upon receipt of the “no-match” letter. The steps are:

• Register with Business Services Online (BSO) within 60 days of receiving the letter to the Employer Report Sta-tus to obtain the name(s) of employees for whom it does not have matching records or social security number (SSN) errors.

• Work with employees to resolve the error.* The SSA has provided employers with a sample letter to use to com-municatetoemployeesaboutthemismatcheddata.Ifanemployeeverifiesthattheemployerhasthecorrectname and SSN, the employer should ask the employee to provide any other reason for the “no-match” letter. If noexplanationisgiven,theemployershoulddocumentinitsfilethatthecompanyhasre-verifiedthattheinfor-mation submitted to the SSA is correct and that neither the employer nor the employee can explain the discrep-ancy. *Employer should contact legal counsel for guidance before reaching out to employees, as our guidance is fact specific.

• IfanemployerfindsanerrorinthedatareportedtotheSSA,thenitshouldlogbackontoBSOandmakecorrec-tions.

• If employees in the “no-match” letter are no longer employed, employers should just note that in their records and no further response to the SSA is required.

Whether an employer determines that its records are accurate or it takes some sort of action, the SSA does not provide further guidance as to what it should do to inform the SSA when they do not need to make corrections. It is not required to report back to the SSA after receiving a “no-match” letter. Nonetheless, an employer should document its actions internally in the event of questioning by other federal agencies (such as Immigration & Customs Enforcement (ICE)) in an I-9 audit. The documentation may include any of the following: (1) the employee is no longer employed by the company as a result of job abandonment, voluntarily resignation or involuntary termination unrelated to the “no-match” letter; (2) it appears there was anerrorinthecompany’sreportingifthecorrectnameandSSNor;(3)thecompanyhasverifiedwiththeemployeethatitreported the correct name and SSN to the SSA and is unable to explain the discrepancy.

Employers can, at minimum, show good faith efforts to resolve the mismatch by following the guidance provided by SSA. Below are some other scenarios which may also arise when following up on the mismatch letters:

• Employee Admits to False SSN: If, upon inquiry, an employee admits to being unauthorized to work in the United States, the employer must immediately terminate the employee.

• Employee Verifies That the Information Given is Correct but Employer Learns Additional Information: If during investigation, an employer learns additional information which amounts to actual or constructive knowledge of unauthorized employment, it must terminate the employee. Additional information may come in the form of tips from co-workers, job abandonment or other suspect activity. If, after further investigation, and under the totality of the circumstances, an employer has actual or constructive knowledge of unauthorized employment, the employer must terminate. Please note thatabsentotherevidence,aco-worker’stipinandofitselfisinsufficientgroundsfortermination,orevenre-verificationofanI-9.Thedeterminationofactualorconstructiveknowledgeishighlyfactspecific,soemployersshouldcontactlegalcounsel before taking any adverse action against an employee.

• Liability to IRS: An employer has no obligation under the Social Security Act to take action or respond to the SSA and the SSA has no enforcement authority to act against an employer who fails to respond. The IRS, however, can penalize an employer for failing to report accurate information.

• Liability to ICE: The SSA is required by law to provide the IRS with information regarding mismatches but it does not routinely share “mismatch” information with other agencies, such as ICE. It is not clear whether this will change in the future. It does provide information to ICE, however, regarding earnings reported on social security numbers assigned for non-work purposesandotherspecificinformationrelevanttoICEinvestigations.

• Liability to Immigrant and Employee Rights Section of DOJ: Employers should also be aware the DOJ previously issued thefollowing“do’sanddon’ts”foremployersonSSN“no-match”letters:

DO

• Recognize that name/SSN “no-match” instances can be due to simple administrative errors.

• Check the reported “no-match” information against your personnel records.

• Inform the employee of the “no-match” notice.

• Askemployeestoconfirmtheirname/SSNreflectedinyour personnel records.

• Advise employees to contact the SSA to correct and/or update their SSA records.

• Give employees a reasonable period of time to address a reported“no-match”withthelocalSSAoffice.

• Follow the same procedures for all employees regardless of citizenship status or national origin.

• Periodically meet with or otherwise contact employees to learn and document the status of their efforts to address and resolve the “no-match.”

• Submit any employer or employee corrections to the SSA.

DON’T

• Assume the “no-match” conveys information regarding the employee’simmigrationstatusoractualworkauthority.

• Use the receipt of a “no-match” notice alone as a basis to terminate, suspend or take other adverse action against the employee.

• Attempttoimmediatelyre-verifytheemployee’semployment eligibility by requesting the completion of a new Form I-9 based solely on the “no-match” notice.

• Follow different procedures for different classes of employees based on national origin or citizenship status.

• Requiretheemployeetoproducespecificdocumentstoaddress the “no-match.”

• Ask the employee to provide a written report of SSA verification.

In conclusion, an employer is caught in the cross-currents when receiving an SSA “no-match” letter, trapped between conflictingpoliciesoftwoagencies.WhileICEmayrequireanemployertotakeactionuponreceivinga“no-match”letter,leadingtotheemployee’stermination,theDOJ’sOfficeforSpecialCounselmayfindthattheemployerhasengagedindiscriminatory practices. It is thus incumbent upon an employer in such a situation to consult with experienced immigration counsel to safely navigate these churning waters by designing employer policies that would be consistently applied each time the employer receives a “no-match” letter.

Address 200 South Sixth Street, Suite 4000Minneapolis, Minnesota 55402-1425


MainFax

612.492.7000612.492.7077

immigrationattorneyminnesota.com


RESOURCESBusiness Services Online (BSO) www.ssa.gov/employer

Employer Correction Request Notices www.ssa.gov/employer/notices.html

Employer Report Status www.ssa.gov/employer/documents/EmpRepStat.pdf

Sample Letter Employers Can Give to Employees www.ssa.gov/employer/notices/SSNVSsampleLetter.pdf

Reasonable Cause Regulations & Requirements for Missing and Incorrect Name/TINs www.irs.gov/pub/irs-pdf/p1586.pdf

SSA “No-Match” Guidance www.justice.gov/crt/ssa-no-match-guidance-page

CONTACTS

LAURA J. [email protected]

LOAN T. [email protected]

DEBRA A. [email protected]

JUNE [email protected]

ROBERT D. [email protected]

MATTHEW P. [email protected]

JENNIFER BOUTA [email protected]

mailto:ldanielson%40fredlaw.com?subject=

mailto:lhuynh%40fredlaw.com?subject=

mailto:dschneider%40fredlaw.com?subject=

mailto:zcheng%40fredlaw.com?subject=

mailto:raronson%40fredlaw.com?subject=

mailto:jcampoli%40fredlaw.com?subject=

I-9 Fast Facts and Anatomy of the I-9 Investigation Process

B3

fredlaw.com

I-9 Fast Facts

FORMI-9EMPLOYMENTELIGIBILITYVERIFICATIONTheImmigrationReformandControlActof1986(IRCA)requiresallemployerstoconfirmtheidentityandemploymenteligibility of any employee hired in the United States after November 6, 1986. To comply with the law, employers must completeandretainaFormI-9,EmploymentEligibilityVerification,foreachnewhire.TheDepartmentofHomelandSecurity(DHS) can request copies of I-9 forms from employers via a subpoena or the issuance of a Notice of Inspection. In carrying out their I-9 obligations, employers must refrain from engaging in any activities which violate any anti-discrimination laws.

I-9 COMPLETION TIPSEffectiveJanuary22,2017,employersmustusetheFormI-9withthefollowingnotation:FormI-911/14/2016N.AfillableelectronicI-9aswellasanI-9printversionareavailableonlineatwww.uscis.gov.ThedifferencebetweenthetwoisthefillableelectronicI-9containsguidanceforeachfillablefield,aswellasdropdownmenusfortheListofAcceptableDocuments.

An employer should not begin the I-9 process until an employment offer has been made and the offer has been accepted.

I-9DO’S• Establish a company-wide written I-9 policy addressing I-9

procedures, SSA no-match letter follow-up procedures, I-9audits,andre-verificationprocedures

• Appoint an I-9 administrator (or I-9 administrators) for the company

• Have a third-party with I-9 audit expertise conduct a semi-annualauditofthecompany’sI-9s

• MaintainI-9filesseparatelyfromhiringandpersonnelfiles

• Maintain a consistent policy as to whether the company will or will not make photocopies of original I-9 supporting documents

• Conduct annual I-9 trainings for employees involved with the I-9 process

• Consider the pros and cons of registering with E-Verify if the company is not already required to register under state law or as a federal contractor/subcontractor

• Establish an I-9 audit response plan to ensure responsible personnel know what to do and who to call if there is a government investigation

I-9DON’TS• Don’tassumeyourI-9sareperfect

• Don’tcompleteSection1onbehalfofemployeebypre-populatingtheemployee’sdatainSection1

• Don’tmakespecificrequestsforcertaindocumentsfromemployees to complete the I-9

• Don’tusetheSocialSecurityNumberVerificationServiceto verify I-9 information

• Don’trequireoracceptmoredocumentsthanarerequiredfortheI-9process.Employerscanbefinedfordocumentabuse or I-9 over-documentation

• Don’tusewhite-outtocorrectI-9errors.Correctionsshould be visible. Each correction must be dated and signed or initialed

• Don’tbeinconsistentintheuseofE-Verifyforemployeesifyou are an E-Verify employer

I-9 RESOURCESwww.uscis.gov/i-9-centralwww.uscis.gov/e-verifyHandbook for Employers, Guidance for Completing Form I-9

USCISForm I-9

OMB No. 1615-0047 Expires 08/31/2019

Employment Eligibility Verification Department of Homeland Security

U.S. Citizenship and Immigration Services

Form I-9 07/17/2017 N Page 1 of 3

►START HERE: Read instructions carefully before completing this form. The instructions must be available, either in paper or electronically,during completion of this form. Employers are liable for errors in the completion of this form.

ANTI-DISCRIMINATION NOTICE: It is illegal to discriminate against work-authorized individuals. Employers CANNOT specify which document(s) an employee may present to establish employment authorization and identity. The refusal to hire or continue to employ an individual because the documentation presented has a future expiration date may also constitute illegal discrimination.

Section 1. Employee Information and Attestation (Employees must complete and sign Section 1 of Form I-9 no laterthan the first day of employment, but not before accepting a job offer.)Last Name (Family Name) First Name (Given Name) Middle Initial Other Last Names Used (if any)

Address (Street Number and Name) Apt. Number City or Town State ZIP Code

Date of Birth (mm/dd/yyyy) U.S. Social Security Number

- -

Employee's E-mail Address Employee's Telephone Number

I am aware that federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form.I attest, under penalty of perjury, that I am (check one of the following boxes):

1. A citizen of the United States

2. A noncitizen national of the United States (See instructions)

3. A lawful permanent resident

4. An alien authorized to work until (See instructions)

(expiration date, if applicable, mm/dd/yyyy):

(Alien Registration Number/USCIS Number):

Some aliens may write "N/A" in the expiration date field.

Aliens authorized to work must provide only one of the following document numbers to complete Form I-9:An Alien Registration Number/USCIS Number OR Form I-94 Admission Number OR Foreign Passport Number.

1. Alien Registration Number/USCIS Number:

2. Form I-94 Admission Number:

3. Foreign Passport Number:

Country of Issuance:

OR

OR

QR Code - Section 1 Do Not Write In This Space

Signature of Employee Today's Date (mm/dd/yyyy)

Preparer and/or Translator Certification (check one):I did not use a preparer or translator. A preparer(s) and/or translator(s) assisted the employee in completing Section 1.

(Fields below must be completed and signed when preparers and/or translators assist an employee in completing Section 1.)I attest, under penalty of perjury, that I have assisted in the completion of Section 1 of this form and that to the best of my knowledge the information is true and correct.Signature of Preparer or Translator Today's Date (mm/dd/yyyy)

Last Name (Family Name) First Name (Given Name)

Address (Street Number and Name) City or Town State ZIP Code

Employer Completes Next Page

SECTION 1. Employee information and attestation

A. To be completed only by the employee unless assisted by a preparer or translator.

B. Must be completed and dated no later than the firstdayofemployment,and no earlier than the acceptance of job offer.

C. The online Smart I-9 provides helper text, , for each question on the I-9.

D. Optional unless the employer is an E-verify participant.

E.Enter‘N/A’fornon-applicable questions or if you choose not to provide information.

F. Entry required if Lawful Permanent Resident (“Green Card” holder).

G. Employment eligibility mustbere-verifiedonorbefore expiration date. Must also complete 4.1, 4.2 or 4.3.

H. Must be completed when a preparer or translator assists an employee in completing Section 1.

A

B

C

D EE

EE

FG

GG

G

H

!! Employers must continue to print out and sign Form I-9 even if completed electronically. The exception is if the employer is using an electronic I-9 software program that meets regulatory requirements for electronic I-9 software programs which includes electronic signature capability.

The employer must ensure that Section 1 is completed correctly and on time.

!

Form I-9 07/17/2017 N Page 2 of 3

USCISForm I-9

OMB No. 1615-0047 Expires 08/31/2019

Employment Eligibility Verification Department of Homeland Security

U.S. Citizenship and Immigration Services

Section 2. Employer or Authorized Representative Review and Verification (Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee's first day of employment. You must physically examine one document from List A OR a combination of one document from List B and one document from List C as listed on the "Lists of Acceptable Documents.")

Last Name (Family Name) M.I.First Name (Given Name)Employee Info from Section 1 Citizenship/Immigration Status

List AIdentity and Employment Authorization Identity Employment Authorization

OR List B AND List C

Additional Information QR Code - Sections 2 & 3 Do Not Write In This Space

Document Title

Issuing Authority

Document Number

Expiration Date (if any)(mm/dd/yyyy)

Document Title

Issuing Authority

Document Number


Document Title

Issuing Authority

Document Number


Document Title

Issuing Authority

Document Number


Document Title

Issuing Authority

Document Number


Certification: I attest, under penalty of perjury, that (1) I have examined the document(s) presented by the above-named employee, (2) the above-listed document(s) appear to be genuine and to relate to the employee named, and (3) to the best of my knowledge theemployee is authorized to work in the United States. The employee's first day of employment (mm/dd/yyyy): (See instructions for exemptions)

Signature of Employer or Authorized Representative Today's Date(mm/dd/yyyy) Title of Employer or Authorized Representative

Last Name of Employer or Authorized Representative First Name of Employer or Authorized Representative Employer's Business or Organization Name

Employer's Business or Organization Address (Street Number and Name) City or Town State ZIP Code

Section 3. Reverification and Rehires (To be completed and signed by employer or authorized representative.)A. New Name (if applicable)Last Name (Family Name) First Name (Given Name) Middle Initial

B. Date of Rehire (if applicable)Date (mm/dd/yyyy)

Document Title Document Number Expiration Date (if any) (mm/dd/yyyy)

C. If the employee's previous grant of employment authorization has expired, provide the information for the document or receipt that establishescontinuing employment authorization in the space provided below.

I attest, under penalty of perjury, that to the best of my knowledge, this employee is authorized to work in the United States, and if the employee presented document(s), the document(s) I have examined appear to be genuine and to relate to the individual. Signature of Employer or Authorized Representative Today's Date (mm/dd/yyyy) Name of Employer or Authorized Representative

SECTION 2. Employer or authorized representative must meet in person with employee to verify identity and employment authorization

I. Employer must complete. If using the online Form I-9, this section will automatically populate once the employee completes Section 1 and clicks “finish.”

J. Employer should provide the employee with a copy of the List of Acceptable Documents but should not specify the documents to present. ThefillableelectronicI-9will provide drop down menus with guidance regarding the List of Acceptable Documents.

K. To be completed by employer or its designated representative.

L. First day of employment must be entered.

M. Must be signed no later than 3 business daysafterthefirstdayofemployment.

N. Employer may use this space as needed for additional information relating to employment authorization, termination and/or retention date.

M

O

O

I

N

L

The employer or its representative must view the original documents in the physical presence of the employee.

P

K

J

SECTION 3. Reverification and rehires

O. Employer must complete upon rehire if within the I-9 retention period, employmentauthorizationre-verification,and/or name change.

P. Must be completed, if applicable, on the most current version of Form I-9. When using a new I-9 to complete Section 3, the employee name must be entered in Section 2.

Address 200 South Sixth Street, Suite 4000Minneapolis, Minnesota 55402-1425


MainFax

612.492.7000612.492.7077

Main Contacts

immigrationattorneyminnesota.comThis material has been prepared by Fredrikson & Byron, P.A. for informational purposes only. This information does not create an attorney-client relationship between the reader and Fredrikson & Byron, its attorneys, or the authors of this material. © 2019 Fredrikson & Byron, P.A. All rights reserved.

BESTPRACTICESFORI-9EMPLOYMENTELIGIBILITYVERIFICATIONCOMPLIANCE

In order to establish an effective I-9 compliance program, companies must take into consideration their culture, resources, andneeds.Whilethereisno“onesizefitsall”strategy,aneffectiveI-9complianceprogramshouldincludeatminimumthe following:

1 Integration of I-9 policy with the overall personnel policy, materials and applications.

2 An overall I-9 compliance administrator.

An I-9 compliance administrator should be designated for the company. This person should be charged with centralized oversight, management, and training regarding the I-9 compliance program. The goal is to create a uniform culture of I-9 compliance throughout the company.

3 GuidanceonI-9proceduresandclarificationtoallcompanyemployeeswhohavehiringauthorityorarepartofthehiringprocess concerning:

a.Whenverificationandreverificationmustbecompleted;

b. What questions may be lawfully asked prior to the actual offer of employment; and

c.TowhomemployeesshouldbereferredforguidanceandassistanceonI-9verificationprocedures.

4 GuidanceonI-9verificationforemployeeschargedwiththeimplementationofI-9procedures.

5 Clear instructions for internal I-9 audits.

To ensure compliance and mitigate damages, the company should have legal counsel conduct annual I-9 audits or, at minimum,aninitialauditofallexistingI-9s.Anauditofthecompany’sI-9swillallowthecompanytodetermineerrorsandviolations being committed to determine the areas of training needed for company personnel.

LAURA J. [email protected]

LOAN T. [email protected]

DEBRA A. [email protected]

JUNE [email protected]

ROBERT D. [email protected]

MATTHEW P. [email protected]

JENNIFER BOUTA [email protected]

mailto:ldanielson%40fredlaw.com?subject=

mailto:lhuynh%40fredlaw.com?subject=

mailto:dschneider%40fredlaw.com?subject=

mailto:zcheng%40fredlaw.com?subject=

mailto:raronson%40fredlaw.com?subject=

mailto:jcampoli%40fredlaw.com?subject=

Notice of Inspection (NOI)

Inspect Forms I-9

Violations

Substantive Violations

Warning Notice

Technical Violations

Notice of Intent to Fine (NIF)

Yes No

Notice of Suspect Documents

Notice of Discrepancies

OCAHO Hearing

Settlement

Compliance

Form I-9 Inspection Process


Employer Guidelines for Worksite Enforcement Visits and Investigations

Section C

Guidelines When Speaking to Government Officials

C1

Ifaninvestigatorshowsupatyourcompanyorworksite,pleasecontactFredrikson&Byron’sImmigrationGroup.Donotengage in any conversations with ICE or any other government investigators except to inform the government representative thefollowing:”Itisourcompany’spolicytocontactourlegalcounselifwearecontactedbyanygovernmentofficial.Pleaseallow me to contact legal counsel to speak with you regarding your request or/any questions.”

Ifyouchoosetoanswertheinvestigator’squestionsbeforelegalcounseliscontacted,besuretofollowtheseguidelines:

• Meetwiththeinvestigatorinaconferenceroomratherthaninanopenareaoryouroffice.

• Take detailed notes about the questions you are asked by the investigator as well as your responses.

• Do notlettheinvestigatorwanderthroughthecompany’spremises.Theinvestigatormustprovideawarranttoenternon-publicspaces.Theinvestigatormusttellyouspecificallywhatheorshewantstoseeonthepremises,andyoushould insist that you accompany the investigator at all times.

• Takedetailednotesabouteveryplacetheinvestigatorlooksandwhatheorshespecificallylooksatorasksabout.

• Employees have the right to speak or not speak with investigators. Inform them of this right. Do not order employees not to speak with investigators.

• Do not hide or tell your employees to leave.

• Make sure you are present during every conversation the investigator has with any employee.

• Takedetailednotesabouttheinvestigator’sconversationwithanyemployee,includingtheemployee’sresponses.

• Take detailed notes about any records you allow the investigator to review.

• Iftheinvestigatoraskstoinspectanyrecords,asktheinvestigatortobeveryspecificaboutwhatheorshewantstosee.Wedonotrecommendthatyousimplyhandoverfileswhichmaycontainprivateorconfidentialinformationorinformationthatisnotspecificallynecessaryfortheinvestigator’sstatedpurpose.

• Donotallowtheinvestigatortoremoveanydocumentsfromthecompany’sfiles.Iftheinvestigatorasksforphotocopiesof any documents, tell the investigator you will prepare those copies after he or she leaves and that you will forward themtohisorherofficeaddress.

Please contact the Fredrikson & Byron Immigration Team at 612.492.7648 for additional information.

Employer Guidelines for Worksite Visits


Template for Recording Meeting with ICE/DOL Visits

C2

Checklist For Visit From Government Investigator


Date: ____________________________________________________________________

Agency: _________________________________________________________________

Company Location: ______________________________________________________

Agent’sPhoneNumber: _________________________________________________

Agent’sName: __________________________________________________________

Agent’sEmail: ___________________________________________________________

Badge Number: _________________________________________________________

OfficeAddress: __________________________________________________________

REASON FOR VISIT

Main Purpose:

Records he/she is requesting to see:

Individual(s) he/she wants to interview:

Atthispoint,asktheinvestigatortowaitwhileyoucontactthecompany’scorporatecounseland/oroneoftheiroutsidelegalcounsel.Youhavearighttoseeklegalcounselbeforespeakingorprovidingfurtherdocumentation.

FAQs and Other Resource Materials

Section D

When ICE or DOL Visits Frequently Asked Questions


U.S. employers who employ foreign workers under non-immigrant petitions (i.e. H-1B, L-1, R-1, OPT STEM, H-2, etc.) must be prepared for worksite inspections along with I-9 investigations/audits (all U.S. employers may be subject to an I-9 investigation/audit whether they hire foreign nationals or not). The government entities with delegated powers to conduct worksiteinvestigationsrelatedtonon-immigrantpetitionsincludetheDepartmentofHomelandSecurity’s(DHS),UnitedStates Citizenship and Immigration Services (USCIS), Division of Fraud Detection and National Security (FDNS) and the DepartmentofLaborWageandHourDivision(WHD).DHS’sImmigrationandCustomsEnforcement(ICE)isresponsibleforconducting I-9 audits/investigations or the unauthorized employment of foreign nationals.

These inspections by FDNS, WHD and ICE may come in the form of an unannounced appearance of an investigator at a place ofbusiness,orinthereceiptofaNoticeofInspection(NOI)fromICE,informingtheemployeroftheagency’sintentiontoconduct an I-9 audit. FDNS and DOL have also used email communication and written correspondence to initiate and conduct such investigations. Employers who have workers through contractors working at their jobsites will also need to be prepared for inquiries and site visits from USCIS regarding the non-immigrant worker.

FREQUENTLY ASKED QUESTIONS REGARDING IMMIGRATION-RELATED WORKSITE AND I-9 INVESTIGATIONSWhat do you recommend as the first step in preparing for an FDNS, ICE or WHD investigator?We recommend that you designate, in advance, an individual as the primary person to respond to an inquiry, and select an alternate contact to stand in when the primary contact is absent. It is also a good idea to alert your receptionist and corporate counsel of the possibility of an unannounced worksite visit. Everyone who might be involved in a worksite visit should be educated as to what to expect and how to conduct themselves should one occur.

If an investigator contacts our company, what should we do first?Asktheinvestigatorforidentificationandrecordtheindividual’sname,title,agencyandcontactinformation.Youmayalsoaskforhisorherbusinesscard.Youshouldrequestinformationonthenatureoftheinquiry.

Most of the time, investigators conducting surprise visits are from the FDNS and will not have a subpoena or search warrant, butinsteadwillwishtosimplytalktosomeoneofauthorityatthecompany,aswellastheHworker.Werecommendyoufirstspeakwithanattorneyatourfirmoryourcorporatecounselbeforeansweringanyoftheinvestigator’squestionsunlessthecompany has already established an investigation response protocol stating otherwise. In addition, we strongly recommend confirminginadvancethattheH-2employeesareperformingthefunctionsdescribedintheirpetitionsandthattheemployeris following all provisions of any applicable LCA.

May I request that the investigator return later and attempt to reschedule?If the investigator is from ICE:

AnI-9auditshouldbeprecededbyawritten“NoticeofInspection,”givingatleastthreedays’notice.Ifthescheduledtimeisinconvenient,youshouldcontactICEpromptlytoreschedulewithinareasonabletimeframe.Youshouldthencontactlegalcounsel immediately to assist you in preparing for and responding to the audit.

If the investigator is from FDNS:

ThelawdoesnotspecificallyprovideanyperiodofnoticeforinvestigationsconductedbyFDNS.Inourexperience,investigators from FDNS expect to conduct their inquiries on the day they arrive. However, your company should not beunreasonablydisruptedbytheunannouncedvisitofanFDNSinvestigator.Iftheinvestigator’svisithascomeataninconvenient time for you, or the designated contact is not available, we suggest that you politely request the investigator return on a different day or time, and offer dates and times to the investigator for when he or she may return.

If the investigator is from WHD:

WHDofficerswillnotifyanemployerverballyorthroughwrittencommunicationbeforetheyopenaninvestigation,althoughthey are under no obligation to do so. The rationale is that an unannounced site visit may be needed to ensure the gathering of accurate information and “observe normal business operations.” An investigator does not need probable cause or consent to conduct an investigation. An employer can technically refuse to permit an investigation, but such action may prompt WHD to instead use their subpoena powers to gain access to the site. WHD has jurisdiction to investigate several different laws addressing fair labor standards, including provisions under the Immigration and Nationality Laws concerning, but not limited to, H-1Bs, H-2s, and E-3s, the Fair Labor Standards Act, and Migrant and Seasonal Agricultural Worker Protection Act.

What will happen during an FDNS investigation?During an FDNS visit, the investigator typically asks to meet with a company representative as well as with the non-immigrant worker. Frequently, the investigator will be interested in viewing the actual worksite. The representative at your company should accompany the investigator at all times and take detailed notes on the questions asked of the company andemployee.Youshouldnotallowtheinvestigatortospeakalonewithanyemployee,whethertheyarethenon-immigrantworker or any other employee, nor should you permit the investigator to roam the premises unescorted.

What questions will the FDNS investigator ask?In general, the investigator will seek information relating to the petitioning employer; the relationship between the petitioner andbeneficiary;whetherthebeneficiaryisorwillbeemployedinthecapacitydescribedandatthelocation(s)specifiedinthepetition;andwhetherthebeneficiaryhastherequisiteexperienceand/orqualifications.

Morespecifically,questionsfromFDNSinvestigatorshavefocusedonthefollowingareas:

• Detailsabouttheemployer,includingownershipstructure,financialinformation,numberofemployees,officelocationsin the U.S., number of non-immigrant workers and/or recent layoffs;

• Employer policies with respect to immigration matters, including repayment agreements, hiring policies and green card policies;

• Detailsaboutthespecificpetitionunderinvestigation,includingjobtitle,duties,day-to-dayfunctions,salary,workschedule, work location(s) and dates of employment; and

• Qualificationsofthenon-immigrantemployee,includingeducation,workexperienceandpriorimmigrationhistory.

How can I prepare our company in advance for a visit from an investigator?The best way to prepare for an unannounced visit by FDNS, WHD or ICE is to perform the following:

• Conduct your own internal review of the employment of all of your non-immigrant workers to be sure that their job duties, work sitesandsalaryareconsistentwiththepetitionthecompanyfiledwithUSCIS.Inaddition,youshouldreview the Public Access File for each non-immigrant worker to be sure it contains all of the documents required by the regulationsthatpertaintotheLaborConditionApplication(LCA).YoushouldalsoverifythecompanyiscomplyingwithallrepresentationsmadeintheLCA.Ourfirmiswell-versedinthelawsandregulationswhichgovernLCAs,aswellasthe documents which should be maintained in the Public Access File. We can assist you in conducting your own internal audittoensureyourcompanyhascompliedwiththeseregulations.ForemployerswhofilelaborconditionorlaborcertificationapplicationswiththeDOL,youshouldensureyouarecompliantwithallwrittenobligationsandassurances,including all salary and payroll obligations.

• Conductyourownauditofthecompany’sI-9recordstoensuretheyhavebeenfilledoutproperlyandareuptodate.OurfirmcanofferyoudetailedguidanceastohowI-9sshouldbeprepared,aswellasassistyouinreviewingyourI-9records.

• Select a person from Human Resources as well as at least one other individual from the company who should be prepared to meet with any investigator should an unannounced visit occur. Provide those individuals with this memo and the checklistswehaveincludedsotheycanbepreparedduringanyinvestigator’svisit.

• Speakwithyourcorporatecounsel’sofficetoadvisethemofthepossibilityyourcompanymaygetavisitfromUSCISorWHD,orreceiveaNoticeofI-9InspectionfromICE.Makesureyouhavethenameofaspecificattorneyfromyourcorporatecounsel’sofficeandknowhowthatattorneycanbereachedatalltimes.Ourfirmcanprovideyouwiththename and contact information of one or more of our attorneys who you will be able to reach at any time.



MainFax

612.492.7000612.492.7077

Archived ContentInanefforttokeepDHS.govcurrent,thearchivecontainsoutdatedinformationthatmaynotreflectcurrentpolicyorprograms.

https://www.dhs.gov/news/2016/07/15/fact-sheet-frequently-asked-questions-existing-guidance-enforcement-actions-or

U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have made available Frequently Asked Questions (FAQs) to supplement existing guidance concerning enforcement actions at or focused on sensitive locations and clarify what types of locations are covered by these policies. ICE and CBP conduct their enforcement actionsconsistentwiththeDepartmentofHomelandSecurity’sNovember2014memorandumprioritizingtheremovalofnational security, border security, and public safety threats.

The ICE and CBP sensitive locations policies, which remain in effect, provide that enforcement actions at sensitive locationsshouldgenerallybeavoided,andrequireeitherpriorapprovalfromanappropriatesupervisoryofficialorexigentcircumstances necessitating immediate action. DHS is committed to ensuring that people seeking to participate in activities or utilize services provided at any sensitive location are free to do so without fear or hesitation.

Q: Do the Department of Homeland Security’s policies concerning enforcement actions at or focused on sensitive locations remain in effect?A: U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have each issued and implemented policies concerning enforcement actions at or focused on sensitive locations. The ICE Sensitive Locations Policy and the CBP Sensitive Locations Policy (http://foiarr.cbp.gov/streamingWord.asp?i=1251 – please cut and paste) remain in effect, and these FAQs are intended to clarify what types of locations are covered by those policies. ICE and CBP conducttheirenforcementactionsconsistentwiththeDepartmentofHomelandSecurity’sNovember 2014 memorandum, which prioritizes the removal of national security, border security, and public safety threats.

Q: What do the Department of Homeland Security policies require for enforcement actions to be carried out at sensitive locations?A: The policies provide that enforcement actions at or focused on sensitive locations such as schools, places of worship, and hospitals should generally be avoided, and that such actions may only take place when (a) prior approval is obtained fromanappropriatesupervisoryofficial,or(b)thereareexigentcircumstancesnecessitatingimmediateactionwithoutsupervisorapproval.ThepoliciesaremeanttoensurethatICEandCBPofficersandagentsexercisesoundjudgmentwhenenforcing federal law at or focused on sensitive locations, to enhance the public understanding and trust, and to ensure that people seeking to participate in activities or utilize services provided at any sensitive location are free to do so, without fear or hesitation.

Q: What does the Department of Homeland Security mean by the term “sensitive location”?A: Locations covered by these policies would include, but not be limited to:

• Schools, such as known and licensed daycares, pre-schools and other early learning programs; primary schools; secondary schools; post-secondary schools up to and including colleges and universities; as well as scholastic or education-relatedactivitiesorevents,andschoolbusstopsthataremarkedand/orknowntotheofficer,duringperiodswhen school children are present at the stop;

• Medicaltreatmentandhealthcarefacilities,suchashospitals,doctors’offices,accreditedhealthclinics,andemergentor urgent care facilities;

• Places of worship, such as churches, synagogues, mosques, and temples;

• Religious or civil ceremonies or observances, such as funerals and weddings; and

• During public demonstration, such as a march, rally, or parade.

Fact Sheet: Frequently Asked Questions - Existing Guidance on Enforcement Actions at or Focused on Sensitive Locations

Release Date: July 15, 2016

(en Español)

https://www.dhs.gov/news/2016/07/15/fact-sheet-frequently-asked-questions-existing-guidance-enforcement-actions-or

https://www.ice.gov/doclib/ero-outreach/pdf/10029.2-policy.pdf

https://www.ice.gov/doclib/ero-outreach/pdf/10029.2-policy.pdf

http://foiarr.cbp.gov/streamingWord.asp?i=1251

https://www.dhs.gov/publication/exercising-prosecutorial-discretion-respect-individuals-who-came-united-states-children

https://www.dhs.gov/news/2016/07/15/preguntas-frecuentes-sobre-zonaslocalidades-sensibles

Q: What is an enforcement action?A: An enforcement action covered by this policy is any action taken by ICE or CBP to apprehend, arrest, interview, or search an individual, or to surveil an individual for enforcement purposes.

Actionsnotcoveredbythispolicyincludeactivitiessuchasobtainingrecords,documents,andsimilarmaterialsfromofficialsoremployees,providingnoticetoofficialsoremployees,servingsubpoenas,engaginginStudentandExchangeVisitorProgram(SEVP)complianceandcertificationvisits,guardingorsecuringdetainees,orparticipatinginofficialfunctionsorcommunity meetings.

Q: Will enforcement actions ever occur at sensitive locations?A: Enforcement actions may occur at sensitive locations in limited circumstances, but will generally be avoided. ICE or CBPofficersandagentsmayconductanenforcementactionatasensitivelocationwithpriorapprovalfromanappropriatesupervisoryofficial,oriftheenforcementactioninvolvesexigentcircumstances.

Q: When may an enforcement action be carried out at a sensitive location without prior approval?A: ICEandCBPofficersmaycarryoutanenforcementactionatasensitivelocationwithoutpriorapprovalfromasupervisorin exigent circumstances related to national security, terrorism, or public safety, or where there is an imminent risk of destruction of evidence material to an ongoing criminal case.

Whenproceedingwithanenforcementactionunderexigentcircumstances,officersandagentsmustconductthemselvesasdiscreetlyaspossible,consistentwithofficerandpublicsafety,andmakeeveryefforttolimitthetimeatorfocusedonthesensitive location.

Q: Are sensitive locations located along the international border also protected?A: The sensitive locations policy does not apply to operations that are conducted within the immediate vicinity of the international border, including the functional equivalent of the border. However, when situations arise that call for enforcement actions at or near a sensitive location within the immediate vicinity of the international border, including itsfunctionalequivalent,agentsandofficersareexpectedtoexercisesoundjudgmentandcommonsensewhiletakingappropriate action, consistent with the goals of this policy.

Examples of operations within the immediate vicinity of the border are, but are not limited to, searches at ports of entry, activities undertaken where there is reasonable certainty that an individual just crossed the border, circumstances where DHS has maintained surveillance of a subject since crossing the border, and circumstances where DHS is operating in a location that is geographically further from the border but separated from the border by rugged and remote terrain.

Q: Are courthouses sensitive locations?A: CourthousesdonotfallunderICEorCBP’spoliciesconcerningenforcementactionsatorfocusedonsensitivelocations.However, enforcement actions at courthouses will only be executed against individuals falling within the public safety prioritiesofDHS’simmigrationenforcementprioritiessetforthintheNovember20,2014,memorandumfromSecretaryJohnson entitled Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants. Such enforcement actions will, absent exigent circumstances, not lead to arrest of non-targeted individuals and will, wherever practicable, take place outside of public areas of the courthouse.

Q: Where should I report a DHS enforcement action that I believe may be inconsistent with these policies?A: There are a number of locations where an individual may lodge a complaint about a particular DHS enforcement action thatmayhavetakenplaceinviolationofthesensitivelocationspolicy.Youmayfindinformationabouttheselocations,andinformationabouthowtofileacomplaint,ontheDHS,CBP,orICEwebsites.

YoumaycontactICEEnforcementandRemovalOperations(ERO)throughtheDetentionReportingandInformationLine at (888)351-4024 or through the ERO information email address at [email protected], also available at https://www.ice.gov/webform/ero-contact-form.TheCivilLibertiesDivisionoftheICEOfficeofDiversityandCivilRightsmaybe contacted at (202) 732-0092 or [email protected].

YoumaycontacttheCBPInformationCentertofileacomplaintorcomplimentviaphoneat1-877-227-5511,orsubmitanemail through the website at https://help.cbp.gov.


https://www.ice.gov/webform/ero-contact-form


https://help.cbp.gov/

Pay Equity & Reasonable Accommodations

Karen Michael President KarenMichael, PLC Karen Michael is the President of Richmond-Virginia based KarenMichael, PLC, a work law & HR consulting firm founded in 2008. The firm specializes in:

• Leadership, Management and Employee training • Workplace Investigations • Human Resources Consulting • Employment Law Advice

Karen is a sought-after speaker, delivering training and keynote addresses to organizations throughout the country, including the public and private sector, non-profits, associations and large international corporations. Karen also conducts objective and through workplace investigations into allegations of harassment, discrimination, workplace bullying and other forms of misconduct, including complex allegations.

Karen is a former human resources executive and employment attorney with over 25 years of experience in providing advice and training with clients.

Karen practiced law at McGuire Woods after graduating with honors from University of Richmond School of Law. She then served as First Vice President of Human Resources at SunTrust Bank.

Karen also taught at University of Richmond’s School of Continuing Studies and regularly teaches at the Executive MBA Program at Virginia Commonwealth University. She was a founding professor for the University of Richmond Public Safety University, teaching public safety officials earning their undergraduate and graduate degrees.

Karen writes a weekly labor law column for the Richmond Times Dispatch Business section. She regularly speaks at national and local events, including the national SHRM conference.

In addition, Karen is regularly invited to speak at the EEOC Technical Seminars. In 2018, she spoke in Raleigh, NC, Charlotte, NC and Norfolk, VA on the topic of workplace harassment for the EEOC. Her presentations were among the top ranked EEOC presentations nationally.

Pay Equity & Reasonable Accommodations

Issues with Pay Equity

When measuring pay for men & women with the same job & qualifications, the 2019 Pay Scale survey concluded that:

A. Women earn at 79% the rate of men

B. Women earn at 98% the rate of men

C. Women and men earn the same

D. Men earn at a rate of 95% of women

Women Tend to Work in Lower‐Level, Lower‐Paid Positions

• Healthcare• Personal Care & Service• Education• Office & Administrative Support• Community & Social Services

WomenOverrepresented(Typically Lower‐

Paying Occupations)

• Engineer• Computer Science

Men Overrepresented

When a worker leaves the workforce for 12 months or longer, the worker will experience an average “wage penalty” of this percent relative to a similar worker who did not take a break.

A. NoneB. 1.3%C. 5.2%D. 7.3%E. 10.8%

“Time off” Penalty Largely Effects Women

Maternity

Child Care

Aging Family

Women of Color Suffer Greater Pay Disparity

In 2015, FastCompany reported that the pay gap in the farming, fishing and forestry industry was set at:

A. 1.5%B. 4.3%C. 5.6%D. 9.4%E. 10.8%

Not Just a US Problem

Is Technology the Solution?

Will Generational & Technology Solutions = pay

solutions?

Equal Pay

19

Equal Pay act

“men and women should receive equal pay for equal work regardless of sex.”

20

“No employer having employees subject to any provisions of this section shall discriminate,…, between employees on the basis of sex by paying wages to employees ..at a rate less than the rate at which he pays wages to employees of the opposite sex …for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”

Rizo v. Fresno County 9th Circuit Court of AppealsApril 27, 2017

En banc: 4/9/2018

21

The 9th Circuit Court of Appeals ruled that reliance upon prior salary as a defense to pay disparity is:

A. A legitimate affirmative defense – Thus Legal

B. Not a legitimate affirmative defense – Thus Not Legal

Final Decision

23

“Any other factor other than sex” is limited to legitimate, job‐related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.”

By relying on prior salary, the defendant therefore failed as a matter of law to set forth an affirmative defense.

Spencer v. Va. State Univ., Appeal No.

17‐2453, 2019 FEP Cases

91279 (4th Cir. Mar. 18, 2019)

• Plaintiff, a sociology professor at Virginia State University, sued the University under the Equal Pay Act and Title VII for paying her less than two male professors.

• Plaintiff’s salary was approximately $70,000 per year and the alleged comparators, two male former University administrators, each earned over $100,000 per year as professors in other departments.

The Plaintiff Had to Prove:

• (1) the University paid higher wages to an employee of the opposite sex who

• (2) performed equal work on jobs requiring equal skill, effort, and responsibility

• (3) under similar working conditions.

Allegations

• Plaintiff’s comparators were two of the highest‐paid professors at the University

• Plaintiff argued the professors performed “equal” work in that they prepare syllabi and lessons, instruct students, track student progress, manage the classroom, provide feedback, and input grades.

• The comparators taught in different departments, taught at different class levels, & worked more hours than Plaintiff.

• Plaintiff provided expert testimony that the comparators were “overpaid”

The 4th Circuit Court of Appeals held that:

A. The Plaintiff and comparators performed equal work, therefore the University violated the Equal Pay Act

B. The Plaintiff and comparators did not perform equal work, therefore the University did not violate the Equal Pay Act

Plaintiff could not show that she and the comparators performed “equal” work requiring “equal skill, effort, and responsibility.” Plaintiff merely provides a general comparison of the positions

Tasks are tasks and skills shared also by middle‐school teachers and law‐school professors, pre‐algebra teachers and biomedical engineering professors.

Collegiate faculty salary decisions require a complex balancing of factors accounting for differences in skill and responsibility attendant to different jobs.

Plaintiff must provide evidence showing the jobs were equal in the strict sense of involving

“virtually identical” work, skill, effort, and responsibility, not in the loose sense of

having some comparative value.

Don’t Ask/Don’t Tell Pay Laws

31

Effective 2018, this state implemented a “don’t ask/don’t tell” law for all employers relative asking about salary at the pre‐offer stage?

1. Florida2. Missouri3. Massachusetts4. Virginia5. Texas

32

Sample Requirements‐ Mass.• It shall be an unlawful practice for an employer to:

(1) require, as a condition of employment, that an employee refrain from inquiring about, discussing or disclosing information about either the employee’s own wages, or about any other employee’s wages. Nothing in this subsection shall obligate an employer to disclose an employee’s wages to another employee or a third party;

(2) seek the wage or salary history of a prospective employee from the prospective employee or a current or former employer or to require that a prospective employee’s prior wage or salary history meet certain criteria; provided, however, that: (i) if a prospective employee has voluntarily disclosed such information, a prospective employer may confirm prior wages or salary or permit a prospective employee to confirm prior wages or salary; and (ii) a prospective employer may seek or confirm a prospective employee’s wage or salary history after an offer of employment with compensation has been negotiated and made to the prospective employee;

(3) discharge or in any other manner retaliate against any employee because the employee: (i) opposed any act or practice made unlawful by this section; (ii) made or indicated an intent to make a complaint or has otherwise caused to be instituted any proceeding under this section; (iii) testified or is about to testify, assist or participate in any manner in an investigation or proceeding under this section; or (iv) disclosed the employee’s wages or has inquired about or discussed the wages of any other employee.

34

Sample States• Delaware• California• Oregon• New Jersey• Massachusetts• New York• Connecticut

Sample Cities• San Francisco• San Diego• New Orleans• Pittsburgh• Albany• New York City• Philadelphia

Puerto Rico

https://www.hrdive.com/news/salary‐history‐ban‐states‐list/516662/

Considerations for Pay Equity• Set clear criteria in job descriptions• Determine your compensation criteria –what do you value when establishing pay? • Experience• Education• Performance

• Train managers & review practices re: don’t ask/don’t tell pay laws• Review jobs that are “virtually identical” to assess pay equity for all factors (race, gender, age)

• Focus internally – avoid the outside “noise”• Don’t make excuses – if pay equity issues arise fix them

The Americans with Disabilities Act

Americans with Disabilities Act ‐ Coverage

39

Must work for an employer that employs 15 or more employees

Employee must be an individual with a

disability who is qualified to perform the essential functions of the position

with or without reasonable

accommodation

Three Considerations under the ADA

40

Discrimination

(actual disability, regarded as and record

of)

Harassment

(actual disability, regarded as and record

of)

Reasonable Accommodation

(actual & record of)

Most Common Issues

• Failure to run the FMLA/ADA conundrum properly• Failure to engage in the interactive process• Failure to hold disabled employees accountable for performance and conduct standards

• Allowing too much leave/not running the process properly• Assuming that an employee has a disability when the employee has not requested a reasonable accommodation

General ADA Background

•Title 1 of ADA requires:• an employer;• to provide reasonable accommodation;• to qualified individuals;•with disabilities;•who are employees or applicants for employment;• unless to do so would cause undue hardship.

ADA Process

43

No Special Process

Employee Comes Forward – Engage in

the Interactive Process

“How can I help you?”

Analysis under the ADA

44

Does the employee have a disability?

Is the employee qualified?

What reasonable accommodation is sought & is it effective and/or are there alternatives that

might be equally effective?

Does it pose an undue hardship?

Question 1:Does the Employee have a Disability?

45

What is a Disability?

46

A physical or mental impairment that substantially limits one or more major life activities; or

A record of such an impairment; or

The employee is regarded as having an impairment

Actual Disability

47

Impairment Substantially Limiting

Major Life Activity

Which of the following, under the ADA, is a disability?

1. Transvestism2. Pedophilia3. Current illegal drug users4. Compulsive gambling5. Pyromania6. Current Illegal Drug Use7. None of the above is a

disability under the ADA

48

Under the ADAAA, an uncomplicated pregnancy is an impairment.

1. True2. False

49

Fred comes to work dragging for the third day and it has become very disruptive. The manager talked with him twice about his lack of performance and given him a written counseling. The manager thinks he has an alcohol problem. The manager should:

1. Discreetly give him phone number for AA

2. Provide him FMLA paperwork

3. Follow the organization’s process/written counseling

4. Pull him aside and ask him if he has an alcohol problem

50

Two weeks later, Fred comes to work with alcohol on his breath and he is clearly intoxicated. The manager should:

1. Drive him home2. Tell him to take FMLA for his

problem3. Give him a reasonable

accommodation under the ADA

4. Discipline him consistent with the Drug Free Workplace Policy

51

Mentioning an Employee’s Disability

Sally has been acting out of sorts lately. She is failing to communicate, has withdrawn from all social interaction and her appearance is different.

Her performance has also diminished.

The manager meets with her and expresses concern that she may be depressed, and recommends that she seek help.

The manager genuinely cares about the employee. Was it appropriate for the manager to tell the employee, under these facts, that she appeared depressed and recommend she seek help?

1. Yes2. No

Is the employee qualified?

This Photo by Unknown Author is licensed under CC BY‐SA

Employee Must Have The Requisite:

55

Skill ExperienceEducation

and

Other job‐related requirements of the

position

And who, with or without reasonable accommodation, can perform the essential functions of the job

A meat inspector was color blind, which meant he was unable to differentiate between red and green. The Dept. of Agriculture said he was not “qualified.” He claimed that he could perform the job with a reasonable accommodation of someone to help him see the color differences. The EEOC determined he was:

A. QualifiedB. Not Qualified

Meat inspector was not able to work independently, as required by the job.

Employee could not independently “detect the differences between contaminants.”

Thaddeus v. Vilsack, 2016 EEOPUB Lexis 698 (EEOC 2016)

Reasonable Accommodations

This Photo by Unknown Author is licensed under CC BY‐SA

Sally cannot perform her job with or without reasonable accommodations due to complications with diabetes and is therefore no longer qualified. She seeks a transfer to another open position, where a license is required. She can obtain the license with six months of studying. She can otherwise perform this other position with or without reasonable accommodation. Sally:

1. Is entitled to the transfer as a reasonable accommodation

2. Is not entitled to the transfer because she is not qualified for the job

3. Is not entitled to the transfer because she is not disabled as a matter of law

4. Is not entitled to the transfer because others are more qualified 59

What is an Accommodation?

“Any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”

The job requires making 15 widgets a week. Due to her disability, Sally can only make 13 widgets a week. Is it a reasonable accommodation to lower the standard to 13 widgets a week for Sally.

A. YesB. No

Examples of Accommodations that are Not Reasonable

Eliminating an essential function of the job

Lowering production standards

Personal use items (ie: prosthetic limb, eyeglasses, hearing aids, wheelchair, hot pot or refrigerator)

Companies can require that a request for reasonable accommodation be in writing.

A. TrueB. False

63

What Satisfies Accommodation Required?

•Employer is not required to provide the specific accommodation sought by employee

•Accommodation must be EFFECTIVE •must enable the employee to perform the essential functions of the job;

•must enable applicant with a disability to have an equal opportunity to participate in the application process;

•must enable employee to enjoy privileges and benefits of employment.

How An Individual Requests Accommodation

• Individual must let company know that an adjustment or change at work is needed for a medical condition.

• The Request is the First Step in the “informal, interactive process between the individual and the employer”• can be made by others (family member, friend)•Does not need to be in writing

Handling Requests

“How can I help you?”

Engage in informal process to clarify what person needs/Ask Questions

Document everything you do

Seek documentation where needed

Fred’s manager delivers his performance review. It is not a good review. Immediately after receiving the review, Fred says, “I have a disability and that’s the reason for my poor performance.” Must the employer withdraw the lower rating as a reasonable accommodation until the employer and employee can discuss the reasonable accommodations the employee may need?

1. Yes2. No

67

During a disciplinary discussion, an employee admits that she is currently addicted to illegal drugs and that is the cause of her performance issues. She tells the manager she is going on leave to get treatment immediately. She walks out the door, and the manager receives a fax from her doctor admitting her for drug rehab for the next 6 weeks. Must your company grant the time off under the ADA as a reasonable accommodation?

1. Probably Yes2. Probably Not

68

Sue has a disability and can no longer meet the physical requirements of her position. There is another position within the company that is vacant, and for which Sue is qualified, but another internal non‐disabled employee is more qualified. Must the company offer Sue the position as a reasonable accommodation?

1. Probably Yes2. Probably Not

69

An employee can no longer drive at night due to a disability. She seeks a shift change to the day shift as a reasonable accommodation so that she can get to work. Could changing the shift of an employee so that the employee can get to work be a reasonable accommodation?

1. Yes2. No

70

Under no circumstances must leave under the ADA be provided for longer than:

1. 6 months2. 18 months3. 2 years4. It depends

71

Sally can no longer perform the essential functions of her position due to her disability. She seeks a transfer to a position that is currently held by a temporary employee. Is Sally entitled to the transfer into the position being held by the temporary employee as a reasonable accommodation?

1. No2. Yes

72

Sally has a disability that prevents her from concentrating. She asks to permanently move from her cubicle to an office to help her to concentrate. During the interactive process, the company suggests ear plugs as an alternative. Sally is upset with this alternative, although she admits it is effective. Must the company give her an office?

1. Yes2. No

73

Verizon & the EEOC“No Fault” Attendance Policy

74

The case ended with:

1. A dismissal – the policy was consistently applied and therefore legal

2. A jury verdict in the amount of $5 million

3. A settlement in the amount of $20 million

75

76

• An employee with asthma who is ineligible for FMLA leave works on an assembly line shift that begins at 7 a.m.

• Recently, his illness has worsened and his doctor has been unable to control the employee’s increasing breathing difficulties.

• As a result of these difficulties, the employee has taken 12 days of leave during the past two months, usually in one‐ or two‐day increments. The severe symptoms generally occur at night, thus requiring the employee to call in sick early the next morning.

• The lack of notice puts a strain on the employer because the assembly line cannot function well without all line employees present and there is no time to plan for a replacement.

• The employer seeks medical documentation from the employee’s doctor about his absences and the doctor’s assessment of whether the employee will continue to have a frequent need for intermittent leave.

• The doctor responds that various treatments have not controlled the asthmatic symptoms, there is no way to predict when the more serious symptoms will suddenly flare up, and he does not expect any change in this situation for the foreseeable future.

Based on this case study, and assume the employee cannot be reassigned, can the employer terminate the employee?

1. Yes2. No

78

• EEOC: “Given the employee’s job and the consequences of being unable to plan for his absences, the employer determines that he cannot keep the employee on this shift. Assuming no position is available for reassignment, the employer does not have to retain the employee.”

• EEOC: “Practical Guidance: It is best if an employee requests accommodation once he is aware that he will be violating an attendance policy or requiring intermittent leave due to a disability. Otherwise, an employer is entitled to continue holding the employee accountable for such absences without any obligation to consider if there is a reasonable accommodation that might address the problem. Moreover, prompt requests for accommodation may enable an employer to better plan for schedule modifications or absences, thus permitting an employee to get the accommodation.”

80

• An office worker with epilepsy who is ineligible for FMLA leave has two seizures at work in a three‐month period.

• In both instances, the after‐effects of the seizure required the individual to leave work for the remainder of the day, although she was able to return to work on the following day.

• To determine whether the seizures will continue and their impact on attendance and job performance, the employer requests documentation from the employee’s doctor.

• The doctor responds that the employee may experience similar seizures once every two to four months, that there is no way to predict exactly when a seizure will occur, and that the employee will need to take the rest of the day off when one does occur.

• The doctor sees no reason why the employee would need more than a day’s leave for each seizure.

Based on this case study, the employer should:

1. Terminate the employee

2. Provide the leave, even though it is unpredictable, as a reasonable accommodation

82

• EEOC: “Although the employee’s need for leave is unpredictable, the employee will require only one day of leave every few months (or approximately six time a year).

• The employer determines that it is appropriate to grant the employee the reasonable accommodation of intermittent leave, as needed, because there will be no undue hardship and this accommodation will permit the employee to recover from a seizure.”

Indefinite Leave?

84

• The company grants 12 weeks of medical leave at the request of an employee with a disability.

• At the end of this period, the employee submits a note from his doctor requesting six additional weeks, which Company grants.

• At the conclusion of this period, the employee submits a new note seeking another six weeks of leave, which would bring the employee’s total leave to 24 weeks.

• The company is concerned about the requests for extensions and whether they signal a pattern. Although Company has been able to cope with the extended absence to date, it foresees a more serious impact on its operations if the employee requires more than a few additional weeks of leave.

• The company requests information from the employee’s doctor about the two extensions, including the reason why the doctor’s earlier predictions on return turned out to be wrong, a clear description of the employee’s current condition, and the basis for the doctor’s conclusion that only another six weeks of leave are required.

• The doctor explains that there have been complications and that the employee is not responding to treatment as expected.

• The doctor states that the current request for an additional six weeks may not be sufficient and that more leave, maybe up to several months, may be needed.

• The doctor states that the employee’s current condition does not permit a clear answer as to when he will be able to return to work.

Based on this case study, must the company grant the additional leave?

1. Yes2. No

87

• EEOC: “Although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration.

• Granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s operations.

• Indefinite leave is different from leave requests that give an approximate date of return (e.g., a doctor’s note says that the employee is expected to return around the beginning of March) or give a time period for return (e.g., a doctor’s note says that the employee will return some time between March 1 and April 1).

• If the approximate date of return or the estimated time period turns out to be incorrect, the employer may seek medical documentation to determine whether it can continue providing leave without undue hardship or whether the request for leave has become one for leave of indefinite duration.”

Post‐Misconduct Request for Accommodation

• Trahan worked for Wayfair as a customer service representative• During her training, she perceived three other women to be in a clique against her

• She suffered from PTSD with “emotional dysregulation” but did not tell this to her employer

• Trahan interacted with a member of the clique with a negative tone, “I was not talking to you, mind your own business.”

• She then called her coworkers bit**es, throwing her headset, and slamming down her cell phone before walking off.

• She then contacted her manager to inquire when she would move to a different desk and team because she would prefer to move away from certain coworkers.

• Trahan acknowledged that she called her coworkers bit**es, but stated that one of them had snapped at her. Trahan stated that she was sick of the clique the others had, that they were always talking about her, and that they were a "bunch of bit**es.“

• Trahan asked to be moved to a different location through a team change and told Foster and Belanger she had previously reported to Noddin that she had trouble with these coworkers.

• During the meeting with management, Trahan sat with her arms crossed and rolled her eyes repeatedly, which management considered very rude and unprofessional.

• The company placed her on administrative leave, and made the decision to terminate her forviolating Wayfair's rules of conduct, which require that employees interact with respect, integrity, courtesy and a cooperative attitude

• That evening, Trahan left the following voicemail:“Hi Jonie, this is Kirstie Trahan and my extension was 1141199. And I forgot to tell you today that the reason I did ask for that transfer of pod and out of that situation is because I am a veteran with severe PTSD and how those girls were treating me was causing triggers to come out in me. Umm, and I do have documentation of that and I can provide any further documentation you need like a DD‐214 or records from my therapist at Acadia. So if you could call me back that would be great. My number is [555‐5555].

• Trahan maintained that her conduct was the product of a panic attack triggered by the confrontational meeting. Trahan did not suggest to either Foster or Belanger that she was experiencing a psychiatric event at the time.

The company refused to accommodate her medical condition, and terminated her. She sued claiming that Wayfair failed to accommodate her and discriminated against her.

A. The court held on summary judgment that the company may have been required to provide a reasonable accommodation ‐ let the jury decide

B. The court held on summary judgment that the facts show that she may have been discriminated against due to her disability, and the jury should decide if she was treated disparately

C. The court held that the company did not violate the ADA in her termination as a matter of law.

“Plaintiff's communication with Dunivan concerning Plaintiff's PTSD was, in short, an excuse for her past transgression of Wayfair's rules of conduct. ‘When an employee requests an accommodation for the first time only after it becomes clear that an adverse employment action is imminent, such a request can be `too little, too late.’” ”So it is here.”

“An employer's obligation to accommodate a disability is designed to apply prospectively rather than retroactively in the form of leniency or forgiveness of prior performance

issues."

“Plaintiff's communications with Ms. Dunivan was designed to excuse unacceptable behavior and dodge coworkers she did not care for, not a request for a workplace accommodation. Defendant's decision to sanction Plaintiff's conduct was not a failure to accommodate.”

How can an employer respond when employees ask questions about a coworker with a disability?

97

“If employees ask questions about a coworker who has a disability, the employer must not disclose any medical information in response.”

Undue Hardship

•Quantitative• Financial•Other Limitations

• unduly extensive• substantial• disruptive• those that would fundamentally alter the nature or operation of the business

Direct Threat, Violence and the ADA

99

Direct Threat Means

A significant risk of substantial harm

To the health and safety

Of the individual or others

That cannot be eliminated or reduced by reasonable accommodation

100

TAJ Walton v. ShperionStaffing, LLC

US District Court – Eastern District – Pa.

January 13, 2015

101

• “Lizelle, Please Help Call [xxx‐xxx‐xxxx] Mom [xxx‐xxx‐xxxx] Dad The police I’m scared and angry. I don’t know why but I wanna kill someone/anyone. Please have security accompany you if you want to talk to me. Make sure, please. I’m unstable. I’m sorry Taj.”

102

103

Plaintiff claims he was terminated b/c of his disability & the employer failed to make any efforts to accommodate his depression, in violation of

the ADA

Spherion claims that the threat of violence took

Plaintiff outside the protection of the statutes

Defendant –“He’s Not Qualified”

104

A ‘qualified individual’ is defined as an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that s/he holds or desires.

An employee who is a direct threat to the safety of himself or others is not a qualified individual with a disability.

Plaintiff –“My actions do not constitute

workplace violence”

105

I did not actually threaten anyone, and instead apologized for my compromised mental state and expressed a clear desire not to

engage in any threatening conduct.

Based on these facts, I believe that the court:1. Dismissed the case

against Spherion, holding that the plaintiff was a direct threat

2. Dismissed the case against Spherion, holding that Mr. Walton’s actions constituted misconduct

3. Refused to dismiss the case against Spherion, holding that it was plausible that Mr. Walton was terminated for his disability instead of workplace threat.

106

Court ANALYSIS

107

“Plaintiff’s actions might well exemplify a commendable response to a psychiatric emergency; of all persons overcome with unfamiliar homicidal ideations were able to act as sensitively as Walton, potentially

there may be less violence.”

Court’s holding

108

“On its face, Defendant’s portrayal of this case presents a superficially convincing theory that

Plaintiff was indeed fired for misconduct, especially when taking into account the fact that Defendants were not on notice about Plaintiff’s disability until after the incident in question. Consequently, had Defendants terminated

Plaintiff’s employment immediately on the day of his perceived crisis, it would seem farfetched that Plaintiff was discharged because of his

disability.”

Court’s holding (cont.)

109

“But the facts presented are not that simple. Approximately three weeks passed between the incident in question and Plaintiff’s termination, during which Plaintiff repeatedly contacted his employer to give notice of his disability and

resultant need for medical treatment. He even specifically inquired about his insurance

coverage, and he was persistent in his efforts to reach his supervisor.”

Mayo v. PCC Structural, Inc.

US District court of appeals9th circuit

July 28, 2015

Motion for Summary judgment

110

111

“want[ed] to bring a gun down [to PCC] and start shooting people.” He explained that “all that [he] would have to do to shoot [the supervisor] is show up [at PCC] at 1:30 in the afternoon” because “that's when all the supervisors would have their walk‐through.”

“com[e] down [to PCC] on day [shift] to take out management.”

“fe[lt] like coming down [to PCC] with a shotgun an[d] blowing off” the heads of the supervisor and another manager. The co‐worker need not worry, Mayo explained, because

she would not be working the shift when the killing would occur.

Plaintiff’s argument

112

My “disturbing statements and comments were the symptoms of and caused by my disability,” thus

making his termination discriminatory.

Defendant’s Argument

113

Mayo was no longer a “qualified individual” once he made his “violent threats.” And “because Mayo was not a

qualified individual,” he was not “entitled to protection under the ADA and Oregon's disability discrimination

statute.”

The court ruled

1. Mayo was not a qualified individual due to his threats

2. Upon being aware of his disability, the company failed to accommodate him and discriminated against him by terminating him

3. PCC failed to conduct an individualized assessment to determine if he was a direct threat – his counselors said he was not violent

114

To prevail on an ADA claim of unlawful discharge, the plaintiff must establish a

prima facie case by showing that:

115

He is a disabled person within the meaning of the statute

He is a qualified individual with a disability;

He suffered an adverse employment action because of his disability.

Court:

• An essential function of almost every job is the ability to appropriately handle stress and interact with others.”

• “And while an employee can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his co‐workers in chilling detail and on multiple occasions (here, at least five times). This vastly disproportionate reaction demonstrated that Mayo could not perform an “essential function” of his job, and was not a “qualified individual.”

116

“This is true regardless of whether Mayo's threats stemmed from his major depressive disorder.”

117

“The Act does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor's edge—in jeopardy of violating the Act if it fired such an

employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only “qualified” employees, that is,

employees qualified to do the job for which they were hired; and threatening other employees disqualifies

one.”

7th Circuit Court of Appeals

Court:

• “An employee whose stress leads to serious and credible threats to kill his co‐workers is not qualified to work for the employer, regardless of why he makes those threats. We have not located any cases, regulations, or guidance that disagree with this

common sense principle.”

118

• Did the company fail to

accommodate him by giving him a new supervisor by eliminating the

threat?

119

120

“Depression and mental illness are serious problems that affect millions of Americans, including many lawyers and judges. We do not minimize the struggles of those who

suffer from these ailments or suggest that all such individuals are incapable of working. But we disagree with Mayo that employers must simply cross their fingers and

hope that violent threats ring hollow. All too often Americans suffer the tragic consequences of disgruntled

employees targeting and killing their co‐workers. While the ADA and Oregon disability law protect important

individual rights, they do not require employers to play dice with the lives of their workforce. We thus conclude

that PCC's actions in this case were lawful.”

• We emphasize that we only address the extreme facts before us in this case: an employee who makes serious and credible threats of violence toward his co‐workers. We do not suggest that off‐handed expressions of frustration or inappropriate jokes necessarily render an employee not qualified. Nor do we imply that employees who are simply rude, gruff, or unpleasant fall in the same category as Mayo.

• See U.S. Equal Emp. Opportunity Comm'n, supra, at *15 (advising that an “anti‐social” employee with a “psychiatric disability” can be a “qualified individual,” even if he is “abrupt and rude”).

121

Remember…..

122

He who is most reasonable will

win!

Resources

This Photo by Unknown Author is licensed under CC BY‐NC‐ND

Farmagain.com

Askjan.org

Websites to Know!• www.eeoc.gov

• www.eeoc.gov• www.eeoc.gov/policy/docs/accommodation.html

• Job Accommodation Network• http://askjan.org

127

Employment Law, Training & Consulting

2711 Buford Road, #210Richmond, VA 23235

804.423.2542

[email protected]

On the web at:

www.KarenMichaelConsulting.com

Follow me on Twitter: @KMWorklaw 128

National Council of Farmer Cooperatives

Contact Us

50 F Street NW, Suite 900Washington, DC 20001(202) 626-8700

www.ncfc.org

www.facebook.com/FarmerCoop

@FarmerCoop

Human Resources Conference - National Council of Farmer ...

Documents

Transcript of Human Resources Conference - National Council of Farmer ...