Senate Immigration Reform Proposal Unveiled

By:  Leigh Cole, Esq.
Dinse, Knapp & McAndrew PC
Burlington, Vermont

Eight U.S. senators from both parties unveiled a much-anticipated bipartisan immigration reform bill yesterday.  A bipartisan group of Members of Congress is prepared to introduce a companion bill in the U.S. House of Representatives.  The 844-page bill introduced yesterday contains a variety of reform measures, including mandatory E-Verify participation, a new agricultural worker visa that finally will enable dairy farmers to employ migrant farm labor legally, new employment-based and investor visa options, provisions to eliminate visa queues and backlogs, a legalization for undocumented individuals, and changes to the H-1B visa program for specialty occupation workers, among others.

Mandatory E-Verify participation is bound to be controversial with employers, but it has been a priority of U.S. regulators for some time.  An E-Verify mandate requires Congressional action.  The good news is that employers participating in E-Verify voluntarily or as federal contractors have reported good experience in recent years, so mandatory participation may not pose much of a problem beyond the addition of yet another regulatory requirement to follow when hiring new employees.  The H-1B proposals are particularly noteworthy for our firm’s practice.  We handle H-1B cases throughout the year for our many clients that are colleges, universities and certain types of nonprofits exempt from the H-1B cap, in addition to H-1B cap cases for other employers.  The reform bill would increase the number of H-1B visas available each year, apply a formula to determine the exact number of H-1B visas needed to support the U.S. economy, add a new recruitment requirement and allow spouses of H-1B workers to have employment authorization if their home country offers a comparable benefit for U.S. nationals.  Another measure in the bill would afford lawful permanent residency to the spouses and minor children of lawful permanent residents, which long has been a source of frustration and despair.  It’s hard to believe that lawful permanent residents have had to wait for many years for their spouses and minor children to join them, perhaps even after waiting for many years to become permanent residents themselves, but that’s a fact.

The Senate Judiciary Committee is holding hearings on the immigration reform proposal tomorrow and Monday, April 22.  The Chair of the Judiciary Committee, our own Sen. Patrick Leahy of Vermont, said yesterday that “[g]etting this done is one of my highest priorities for the Judiciary Committee and is one of the reasons that I decided to continue to chair the committee” this year even though as the senior member of the U.S. Senate he had his pick of committee assignments.  We are watching the developments in Congress and hoping for passage of immigration reform legislation that addresses the major problems in U.S. immigration policy and procedures, including the employment-based immigration issues that are vitally important to our clients.

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A Risk Management Tip

By:  Daryl Lapp
Edwards Wildman Palmer LLP
Boston, Massachusetts

It is not uncommon for colleges and universities to provide catering and other food or beverage services to paying patrons in a variety of settings:

  • weddings, conferences and other functions which are catered by the institution’s dining services;
  • events at on- or off-campus conference centers;
  • group events or simply individual meals at faculty clubs; and so on.

It also is not uncommon for the institution to have a “no tipping” policy in place for these events or venues:  the wait staff are paid an appropriate, flat hourly rate with no expectation of tips and in fact with the understanding that tips are not permitted.

While this common scenario, as described, is perfectly lawful, significant problems can arise if the institution includes a “service charge” as part of the cost of the event or individual meal.  Here in Massachusetts, several colleges and universities currently are facing or recently have faced class action suits filed on behalf of wait staff for alleged violations of the Massachusetts Tips Law, Mass. Gen. L. c. 149, sec. 152A.

Under the Tips Law, employers may not retain tips given to wait staff; in addition, employers who impose a service charge must remit that charge to wait staff even if it is undisputed that the service charge was not in the nature of a gratuity (for example, if the charge was intended to cover overhead expenses) and even if it is undisputed that the wait staff shared that understanding.  Massachusetts courts have held that the term “service charge” is synonymous with the terms “tip” and “gratuity” and therefore any service charge must be paid over to wait staff regardless of the intent or understanding of the employer and the wait staff, and regardless of whether such an outcome results in a “windfall” recover by the wait staff.

The exposure for the institution in such cases can be significant.  As with many violations of wage and hour laws, the institution generally will face liability not only for the amount of wrongfully withheld wages but also multiple damages and attorneys fees, in addition to the costs of defending the litigation.

Hence this tip:  Review the law in your state relative to wait staff tips to see if it contains a strict liability provision for “service charges” or the like.  If it does, review the policies and contract forms that are used by dining services, clubs and other providers on your campuses to see whether they include “service charges” or other charges that might have implications under the tips statute.  If such an issue exists, don’t let a plaintiffs’ class action attorney be the one to discover it.

Private Colleges and Universities Should, in the Age of Social Media, Devote Increasing Attention to the “Labor” Portion of Labor and Employment Law

By:  Betty S. W. Graumlich & Pakapon Phinyowattanchip
Reed Smith LLP
Richmond, Virginia

Can private colleges and universities discipline employees for social media posts that violate the institution’s policies?  The answer may surprise you.  While public colleges and universities are not subject to the National Labor Relations Act (the “Act”) or the jurisdiction of the National Labor Relations Board (the “NLRB”), private colleges and universities with “gross annual revenue from all sources … of not less than $1 million” are.  29 C.F.R. § 103.1.  Given the Board’s recent expansion of the definition of “concerted activity” to include many activities not previously thought to be subject to the NLRB’s jurisdiction—like an employee’s comments on Facebook—private colleges and universities need to understand how labor law may apply to them.

It is an unfair labor practice for any covered employer—whether unionized or not—to “interfere with, restrain, or coerce employees in the exercise of their right … to engage in concerted activities for the purpose of … mutual aid or protection.”  See 29 U.S.C. §§ 158(a)(1) and 157 (emphasis added).  That means an employer may not lawfully discipline or discharge an employee when: (1) the employee engaged in concerted activity; (2) the employer knew of the concerted nature of the activity; (3) the concerted activity was protected by the Act; and (4) the discipline or discharge was motivated by the employee’s protected, concerted activity.  Meyers Indus., Inc., 268 N.L.R.B. 493 (1983) (“Meyers I”).  “Concerted activity” includes actions by individuals attempting to initiate or plan for group action, and actions by “individuals bringing truly group complaints to the attention of management.”  Meyers Indus., Inc., 281 N.L.R.B. 882 (1986) (“Meyers II”).

The NLRB’s recent rulings in the area of social media highlight the danger for private colleges and universities when they do not consider the potential reach of the Act.  For example, in Hispanics United of Buffalo, Inc., Case 03-CA-027872, 2012 WL 6800769 (N.L.R.B. Dec. 14, 2012), the NRLB ruled that posting Facebook comments about a coworker was a “concerted activity” on those facts.  In that case, a caseworker for a nonprofit social services provider threatened to complain to her boss that other employees were not performing their duties.  In response, Cole-Rivera, another caseworker, posted the following Facebook message from her home computer:   “[A] coworker feels that we don’t help our clients enough at [Hispanics United]. …  My fellow coworkers how do u feel?”  Several of her colleagues posted expletive-laden responses, objecting to the assertion that their work performance was substandard.  After determining that their Facebook comments constituted “bullying and harassment” under the company’s “zero tolerance” policy, the employer fired Cole-Rivera and several of her colleagues that responded to her Facebook post.

The NLRB concluded that Cole-Rivera and the other employees engaged in concerted activity when they posted Facebook comments concerning another employee’s remark about their job performance.  Accordingly, the NLRB held that it was unlawful for the employer to terminate those employees, even though the comments violated the company’s policy on bullying and harassment.  Id. at *4.

Hispanics United teaches that private institutions must consider the labor law implications when making disciplinary decisions.  In the social media context, some factors to consider in determining whether an employee’s conduct constitutes “concerted activity” include (1) the intent of the employee who posted the comment; and (2) whether the posting invites and receives group responses about the terms and conditions of employment.  As Hispanics United establishes, offensive comments on Facebook about employment matters that violate an employer’s policies may nevertheless be subject to the protection of the Act.  In today’s environment, social media is the new “water cooler” where employees gather to discuss terms and conditions of their employment.

For discussions and copies of previous NLRB General Counsel’s reports on social media cases, please visit these sites:

http://www.employmentlawwatch.com/2012/02/articles/employment-us/social-media/nlrb-general-counsel-issues-second-report-on-social-media-cases

and

http://www.employmentlawwatch.com/2012/05/articles/employment-us/nlrb-general-counsel-issues-third-report-on-social-media-cases/

Reducing Your Risk of Retaliation Claims

By: Jennifer Divine
Miller Nash LLP
Seattle, Washington

  • University Research Center Settles Retaliation Allegations After Firing Whistleblowers
  • Another Coach Sues School Alleging Retaliation For Opposing Title IX Violations
  • Nursing Student Could Not Pursue Harassment Claim, But Retaliation Claim Allowed
  • Assistant Dean Allowed To Proceed With Retaliation Case Where She Had Good Faith Belief That She Was Opposing Discriminatory Decisions By College Provost
  • Discrimination Suit Thrown Out But Jury Finds For Professor On Retaliation Claim

Do any of these situations sound familiar? Let’s hope none of them describe current events on your campuses.

As it happens, the headlines above are all fictional, so no need to spend time searching news archives to scope out the institution involved. Truth, however, is often stranger than fiction. The real cases that inspired the pseudo-headlines above were at least as worrisome to the administrators involved, and of course real cases are a good deal more expensive to defend than hypotheticals.

Retaliation claims are still on the rise.

Twenty years ago retaliation claims were only 15 percent of the total charges filed with the EEOC. Today, seven years after the Supreme Court’s 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White, retaliation charges make up almost 40 percent of the EEOC’s docket. State agencies and court filings have seen similar dramatic increases.

Retaliation is a dangerous area for employers. An employee (or former employee) may not be able to support a complaint of discrimination or other unlawful conduct, but still be able to win a follow-on retaliation claim. In many cases, the underlying complaint is resolved internally, dismissed in an administrative process, or thrown out on summary judgment. Retaliation claims are not so easily quashed. Retaliation allegations are more fact-intensive, harder to settle, and more frequently survive summary judgment and get to a jury than do discrimination cases. And retaliation suits can be expensive — while juries (and judges) look skeptically at discrimination claims, they typically find it much easier to believe that a supervisor or other decision maker acted with a retaliatory motive against an employee who had accused the decision maker of wrongful conduct.

Preventing successful retaliation claims at your university.

A recent panel at the Higher Education Discrimination Law workshop held by the National Association of College and University Attorneys in Nashville, Tennessee, March 20-22, 2013, addressed these issues, giving useful tips to help employers defend against retaliation lawsuits as well as reduce the risk of retaliation claims being brought in the first place.

The presentation, “What Happens After the Whistle Blows: Derailing Retaliation Claims,” was moderated by Daniel Kaufman of the Chicago office of Michael Best & Friedrich LLPJennifer Divine of the Seattle office of Miller Nash LLP gave a legal overview of the expanding universe of retaliation and whistleblower claims and the evolving theories and standards that courts apply to these claims. Stephanie Leider, Senior Counsel in the Office of General Counsel, University of California, spoke on the best practices college administrators should use to establish a culture that respects and protects whistleblowers and prevents retaliatory situations from developing.

Tips include:

  • Implementing and enforcing strong policies that prohibit all forms of retaliation and provide multiple avenues for reporting.
  • Training employees on university policies and how to report complaints.
  • Training supervisors regarding what retaliation is and where to refer complaints.
  • Referring complaints to trained and impartial personnel to investigate and resolve.
  • Advising whistleblowers to promptly report any retaliation or threat of retaliation.
  • Following up with complainants and monitoring treatment of whistleblowers.
  • Training the whistleblower’s work unit and working with the supervisor to prevent retaliation by co-workers.
  • Counseling supervisors on dos and don’ts in treatment of employee who has reported complaint against the supervisor, and giving the supervisor a place to vent and ask questions.
  • Changing the supervisory relationship when necessary.
  • Following sound employment practices with fair and consistent treatment of all employees.
  • Documenting candid performance evaluations in writing at least annually and promptly informing employees of performance problems in between annual reviews.
  • Giving employees an opportunity to respond to performance criticisms and coaching.
  • Ensuring that discipline and termination decisions are well-founded and supported by documentation.

Materials from the presentation are available to NACUA members and can be accessed online at the NACUA website.