All posts by stu

Compliance, Concerted Activity, Dress Code, Employee Handbook, Employee Rights, NLRB, Section 7 Rights

Prohibiting BLM Messages on Employee Clothing is Legal says NLRB Judge

Most employers have dress code requirements and prohibit employees from wearing certain messages and symbols on their work attire. At Home Depot, its dress code states that the orange apron “is not an appropriate place to promote or display religious beliefs, causes or political messages unrelated to workplace matters.” Home Depot employees are prohibited from using the apron for “displaying causes or political messages unrelated to workplace matters.” After George Floyd, a Minneapolis area employee put BLM messaging on his apron, in violation of policy. Despite the manager trying to convince the employee to remove the message, he was terminated after he refused to remove it. He complained to the National Labor Relations Board (NLRB) and the agency sued Home Depot and claimed that the retailer violated federal labor law by preventing staff from displaying the message “Black Lives Matter” on their aprons, as well as by threatening and punishing employees to discourage collective action.

On June 10, 2022, an Administrative Law Judge last week ruled for Home Depot because he concluded that the BLM messaging lacked any objective and direct relationship to terms and conditions of employment, so it was not legally protected by federal law (NLRA). He concluded that the message was originally used to address the unjustified killings of Black individuals by law enforcement and vigilantes. To the extent that BLM is used beyond that, it operates as a political message for societal concerns and only relates to the workplace because workplaces are in society. The NLRB issued an unfair labor practice complaint against Home Depot for enforcing its dress code policy and requiring the employee to remove the BLM message. However, the evidence showed that BLM messaging neither originated as, nor was shown to be reasonably perceived as, an effort to address the working conditions of employees. It may have profound societal importance, but it was not directly relevant to the terms and conditions of Home Depot employees, as employees.

Under the Biden Administration, the new NLRB General Counsel has announced an intent to expand the concept of “concerted protected activity” beyond traditional limits, by including activity in support of political and social justice issues, such as BLM, $15 minimum wage, undocumented workers etc… The NLRB has also taken legal action against Whole Foods, which also prohibits employees from wearing face coverings with Black Lives Matter imprinted on them.

Compliance, Concerted Activity, HR Compliance, Human Resources, NLRB

Are Union Election Petitions Increasing in early 2022?

Yes. According to the National Labor Relations Board (NLRB), during the first six months of fiscal year 2022 (October 1–March 31), union representation petitions filed at the NLRB have increased 57%—up to 1,174 from 748 during the first half of FY2021. At the same time, unfair labor practice charges have increased 14%—from 7,255 to 8,254. Read more. The numbers are driven mainly by over 250 cases filed by Starbucks employees alone (with around 40 stores voting for a union). In recent years, unions have been moving away from manufacturing and toward non-profits and the healthcare industry.

A representation petition is filed by employees, unions, or employers with an NLRB Field Office to have the NLRB conduct an election to determine if employees wish to be represented by a union. The Field Office investigates the petitions and, if meritorious, conducts an election to allow employees to decide whether or not they wish to be represented by a union. An unfair labor practice charge is filed by any member of the public with an NLRB Field Office if they believe an employer or union has violated the National Labor Relations Act. An NLRB field office will then investigate the charge and issue a complaint, absent settlement, if the Regional Director determines the charge has merit.

What workplaces are subject to the National Labor Relations Act (NLRA)? The NLRA applies to most private-sector employers, including manufacturers, retailers, private universities, and health care facilities.  The NLRA does not apply to federal, state, or local governments; employers who employ only agricultural workers; and employers subject to the Railway Labor Act (interstate railroads and airlines). It covers employees at union and non-union workplaces. The law does not cover independent contractors and most supervisors.  Read more.

Arbitration, Discrimination, EEOC, Retaliation

Arbitration Clause Won’t Prevent Sexual Harassment Lawsuits

Over the years, many employers include pre-dispute mandatory arbitration agreements with new employees (sometimes in an employee handbook, and otherwise in a separate agreement). Both parties agree to submit any employment-related disputes to arbitration, rather than to the traditional court process. Arbitration is an alternative dispute resolution technique that is very different than a court case, in front of a judge and jury. A dispute is heard by an arbitrator, who follows the applicable law, and issues a binding decision on the parties. These decisions, in general, can not be appealed, so the decision is final.

In March 2022, a new federal law ended forced arbitration of sexual harassment claims. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, H.R. 4445 (The “Act” or “EFASASHA”), was signed by the President. The Act prohibits the forced arbitration of sexual harassment claims and allows these claims to be brought in court even if the Employee is bound by a mandatory arbitration agreement. Mandatory pre-dispute arbitration agreements are not invalid or unenforceable, but the new law permits the employee to be a named party to a lawsuit alleging sexual harassment or sexual assault under federal or state law.

Net result for employers is that an employee with a sexual harassment claim for conduct that arose on or after the date of the EFASASHA (March 3, 2022) can invalidate any pre-dispute arbitration agreement even if it was signed prior to March 3. The new law goes beyond employment agreements, and also covers independent contractors, customers, and any other persons with whom a business may try to enforce mandatory arbitration. Arbitration agreements can be enforced for other workplace and employment disputes, such as claims for retaliation, wage and hour, and discrimination.

Audits, E-Verify, HR Compliance, I9 Form, Immigration, Publix Immigration Certification

Form I9 Audits – What you need to know

The I-9 Form is a legally required document for new hires. It is used by employers to prove an individual is legally eligible for employment in the United States. The form is legally required by the U.S. Immigration Reform and Control Act (IRCA). The current form is 2 pages long; employees and employers complete their respective sections, as well as sign and date it.  A properly completed form verifies the identity of an employee and ensures that the individual is legally capable of working in the U.S. These forms shall be kept separate from the employee’s file, and in Florida, employers are required to either use E-verify or keep copies of the employment authorization documents.

So far in 2022, Consultstu has performed several independent third-party immigration reviews for companies contracting with Publix Supermarkets Facilities Services. When completing I9 audits, here are some common compliance errors we identify in client paperwork:

  • I9 form was created late (employee completed Section 1 after 1st day).
  • Section 2 (review and verification section) is not fully completed by the employer or an authorized representative (within 3 business days of hire).
  • Employee start date missing, or different than payroll records.
  • Issuing authority of out of state drivers’ license incorrect
  • Employee failing to complete the translator box (bottom of page 1).
  • Putting Driver’s License information in List A (should be List B).

According to the US Citizenship and Immigration Services, if corrections are necessary to an I9 form, corrections should be initialed and dated on the form so it is clear who and when the correction was made. Employees make corrections to Section 1, and Employers make corrections to Section 2.

When completing an audit, ConsultStu provides the client with valuable notes and recommendations regarding your Form I-9s, how to correct any errors, and best practices to improve your knowledge and overall compliance.  This extra service has been greatly appreciated.  Our service is completely remote, thorough, and accurate, and reviews your company’s Form I-9s, supporting documents, and E-Verify documentation. 

Have any questions? Call us today at (727) 350-0370 to discuss or schedule an annual (new or re-certification) Publix Immigration Review and I-9 Audit.

CDC, Contagious disease, Coronavirus, Safety

CDC Revises Indoor Mask Guidance (Feb 2022)

In late February 2022, the Centers for Disease Control (CDC) relaxed its mask guidance for communities where hospitals aren’t under high strain. The CDC announced its new COVID-19 Community Levels tool which is a way for communities to decide what prevention steps to take based on the latest data. Levels can be low, medium, or high and are determined by looking at hospital beds being used, hospital admissions, and the total number of new COVID-19 cases in an area.  According to early news reports, nearly 70% of Americans live in communities with low or medium risk and are not advised to wear masks indoors.

The new guidelines for assessing community risk weighs hospitalizations for COVID-19 and the proportion of beds occupied by COVID-19 patients in local hospitals more heavily than rates of new infections alone. The CDC will release updated county-by-county risk levels weekly on its website. Unfortunately, the CDC does not release the underlying community data so that individuals can decide on their own. The CDC change comes at a time when many states are dropping mask mandates and people are becoming increasingly fatigued from mask-wearing. Recent studies and medical scholarship has also reached varying conclusions about the effectiveness of cloth masks under normal wear conditions.

Check your state and county here. In high-risk (orange) communities, the CDC Guidance recommends wearing a well-fitting mask indoors in public, regardless of vaccination status or individual risk.

Consultstu Team, Employee Handbook, Human Resources, Investigations, Unemployment

Connie Beck, HR Generalist, joins Consultstu

Connie Beck is passionate about people and feels that Human Resources plays an integral part in both the employee’s success, as well as the employer. She obtained a bachelor’s degree in Psychology from the University of South Florida, as well as two HR designations; Professional in Human Resources through the Society of Human Resources Management and Certified Practitioner through the Human Capital Institute.

Connie has worked in various industries including manufacturing, entertainment, medical, financial, and assisted living, giving her the unique opportunity to work with diverse populations and grow her human resources skills. She has extensive experience working with employee relations, training, policy and procedures interpretation, employee investigations, and unemployment. Outside of work, she loves spending time in her North Carolina home. Her favorite activities include quilting, working in the yard, and spending time with friends and family. She and her husband currently have one child, their fur baby Wiggy, rescued from a kill shelter 14 years ago.

Audits, E-Verify, HR Compliance, I9 Form, Immigration, Publix Immigration Certification

ConsultStu is a Qualified Independent Third Party for Publix Immigration Reviews

ConsultStu is a qualified independent third party that can complete your Publix required Immigration Review and Audit, whether it is your first one, or the annual compliance re-certification. Since 2018, we have worked with many companies from various industries to complete their mandatory annual Immigration Law Certification. We have worked with companies in technology, construction, equipment and service. Our clients have included local Florida companies, as well as companies from around the United States. Publix Super Markets is the largest employee-owned supermarket chain in the U.S. Founded in 1930 by George W Jenkins, Publix operates over 1,200 retail food supermarkets throughout Florida, Georgia, South Carolina, North Carolina, Alabama, Tennessee and Virginia.

When contracting with Publix, the Corporate Facilities Services team will notify your company about its responsibility to submit a current I-9 Immigration Certification Letter. This is an annual requirement for those with continuing business relationships with Publix. The Facility Services team will advise Publix contractors that they are expected to make the necessary arrangements to have its Immigration Certification Letter updated by a qualified Independent third party and then submit to the Facility Services department. Failure to update the certification letter may result in services being halted by Publix until it it received.

Here are some of the comments from our Publix Immigration audit clients: “awesome support”, “highly recommend”, “quick to respond to questions” and “excellent service.” Need an affordable Publix immigration review? Call Consultstu at 727-350-0370, and we will be your qualified independent third party reviewer for your Publix Supplier immigration review.

EEO-1 Form, EEOC, HR Compliance, Human Resources, Record Keeping

2021 EEO-1 Reporting Set to Open April 12, 2022

The 2021 EEO-1 Component 1 data collection is tentatively scheduled to open on Tuesday, April 12th, 2022. The tentative deadline to file the 2021 EEO-1 Component 1 Report is Tuesday, May 17th, 2022. Updates regarding the 2021 EEO-1 Component 1 data collection will be posted to the EEO-1 website as it becomes available. The Filer Support Team will not resume normal operations until immediately prior to the opening of the 2021 EEO-1 Component 1 data collection.

Can a company still report for last year? No, additional 2019/2020 EEO-1 Component 1 Reports will be accepted, and the EEO-1 Filer Support help desk is no longer accepting new requests for assistance.

What companies are required to report the EEO-1 form? The EEO-1 Component 1 report is a mandatory annual data collection that requires all private-sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria, to submit demographic workforce data, including data by race/ethnicity, sex and job categories. For additional information on the types of reports required for EEO-1 Component 1 filers, please see the hyperlinked Fact Sheet: 2021 EEO-1 Component 1 Required Report(s).

Have a question, or need help with EEO-1 reporting or other HR compliance matters, give Consultstu a call at 727-350-0370.

Coronavirus, Department of Labor, Federal Contractors, Human Resources, OSHA, Risk Management, Safety

OSHA’s Emergency Temporary Standard (ETS) requiring COVID-19 Vaccines Blocked by Supreme Court

On Thursday, January 13, the U.S. Supreme Court issued 2 decisions related to the Biden Administration’s push to require vaccines against COVIA-19 for the U.S. workforce. First, the Court stopped the enforcement of OSHA’s Emergency Temporary Standard (ETS) that mandated that employers with 100 or more employees to require vaccines, or require weekly testing of those not vaccinated. The OSHA ETS took effect on January 10, 2022, but was halted by the Supreme Court decision. The Court stated that OSHA must have clear authority from Congress before implementing such a broad and wide rule (affecting an estimated 84 million workers). Read more (NFIB v. OSHA).

However, the Supreme Court refused to stop enforcement of the Biden rule withholding Medicare and Medicaid funding from medical facilities that do not ensure that their staff is vaccinated against COVID-19 (unless exempt for medical or religious reasons). The Department of Health and Human Services (HHS), which administers Medicaid and Medicare, has a core function of protecting patients’ health and safety, so the mandatory vaccine rule could be a reasonable exercise of its authority. Read more (Biden v. Missouri).

The vaccine mandate for federal contractors was not addressed in either of these decisions. That Presidential executive order was halted by several federal courts because there is a question about whether the law that gives the President authority to promote economy and efficiency in federal contracting, can justify a vaccine requirement.

As things stand today, the OSHA ETS mandate for vaccines or testing at large employers is not enforceable, but the HHS mandate for vaccines of staff at medical facilities receiving Medicare and Medicaid reimbursement is enforceable.

General HR Questions, HR Compliance, Human Resources, W4, Wellness program

HR Checklist for 2022

Time to check in on your HR fitness for 2022. Now that we have closed out 2021, and started 2022, the human resources and payroll departments need to take some important January actions to ensure a smooth transition into 2022. We have a 10 point HR checklist to help your company get up to date with fast-changing federal and Florida rules and regulations. Read about 2022 payroll updates.

  1. Update New Hire Packet with 2022 documents. Replace your W4 with the 2022 version. Optional – send a W4 to existing employees to see if they would like to make changes for 2022.
  2. Ensure your current current Form I-9 is being used (expiration date for 2022). An update, or change, will be coming later this year.
  3. Go through I9 binder, or folder, to purge old I9 forms. The retention rule is a minimum of 3 years of 1 year after termination, whichever is longer.
  4. If insurance renewed January 1, update the Heathcare Exchange form (mandated by ACA) with current group health insurance renewal information (contribution cost and eligibility) on page 2.
  5. Update COVID policy, to reference latest CDC updates (recent update on shortened isolation/quarantine period issued December 27).
  6. Review, update and post the updated observed holiday schedule for 2022.
  7. Review recruiting and retention strategies for 2022 to keep up with the market changes. COVID has made an impact on the workplace and the Great Resignation is expected to continue into 2022. Check market rates for key positions.
  8. Review Employee Handbook for updates. Did employee count increase or decrease? Policy changes?
  9. If you are a federal contractor, with direct federal contracts, minimum wage will increase to $15.00 an hour in January 2022.
  10. If you are an employer who provides mileage, review the new rates effective January 1st, 2022.
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