NLRB Continues To Have Opinions About Your Employee Handbook

The National Labor Relations Board just issued extensive guidance this week as to what types of employer polices and rules, in handbooks and otherwise, will be considered to be lawful and which are likely to be found to unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA” or the Act”).

This NLRB's instructions are highly relevant to all employers in all industries that are under the jurisdiction of the National Labor Relations Board, regardless of whether they have union represented employees.

The NLRB's standard standard for deciding whether an employer policy unlawfully interferes with employees’ rights under the Act is generally whether “employees would reasonably construe the rules to prohibit Section 7 activity” – that is action of a joint or combined nature intended to address issues with respect to an employee's terms and conditions of employment.

Policies that can be implicated include handbook disclosure provisions, social media policies, conflict of interest policies, no distribution/no solicitation policies, and employee conduct rules, among others.

PRACTICE TIP:  When drafting language for employee handbooks, policies, or work rules, avoid language that restricts employees from discussing terms and condition of employment or treats union-related speech/conduct differently than other non-union activities.  As always, have your handbook reviewed by an attorney!

How to Avoid I-9 Penalties and Problems

An I-9 form may appear to be a simple one-page piece of hiring paperwork. However, the one page I-9 form comes with enough rules and regulations to get employers into hot water.  There are many common mistakes and human errors that can be made while completing and maintaining I-9 records. To avoid the potentially high costs of an I-9 violation, employers should keep these six common I-9 processing errors in mind:

1. Incorrect or Missing Forms:  Common I-9 documentation mistakes include incorrect dates, missing signatures, and incorrect identifying documents.  It is also possible for an employer to fail to complete an I-9 form altogether or misplace a completed form during filing.

2. Failure to Follow the Three-Day Rule:  I-9 forms must be completed within three business days of the employee’s first day of work. This means that the employee must complete section one of the form, provide identification documents and have those documents verified by the employer, all within three business days.

3. Failure to Re-verify:   For employees of certain citizenship statuses, employers will need to track and update the employee’s supporting I-9 documentation. This supporting documentation includes an expiration date and it is the employer’s responsibility to monitor that date and request new documentation prior to expiration.

4. Improper Identifying Documents:   In the flutter of activity during hiring, it can be difficult for hiring managers to check that all necessary documents are presented and valid. If an employer fails to obtain the right combination of identifying documents from lists A or lists B and C, then the I-9 documentation will be considered incomplete and the employer becomes subject to fines.

5. Improper Document Maintenance:  Federal regulations require employers to maintain I-9 forms either one year after the date of termination, or three years after the date of hire, whichever is greater. If an employer fails to destroy I-9 forms within the outlined time frame, then that employer will be subject to fines.

6. Lack of Supporting Documentation for E-verify Photo Matching:  In 2010, E-Verify introduced photo matching as a way to prevent employees from using false identifying documents. For passports, passport cards, permanent resident cards and employee authorization cards the E-verify system will require employers to compare the document photo with an onscreen photo as an additional security measure.

PRACTICE TIP:  In order to assist with your I-9 compliance responsibilities and avoid potentially hefty fines, employers should consider these six common I-9 documentation mistakes. Even with a good system of checks and balances in place, it is still possible for hiring managers to make these common errors.

I'm starting a business ... What kind of entity should I choose?

When beginning a business, you must decide what form of business entity to establish. Your form of business determines not only which income tax return form you have to file, but also how the company is managed, how personal liability may be sheltered, and the ease of operation. The most common forms of business are the sole proprietorship, partnership, corporation, and S corporation. A Limited Liability Company (LLC) is a relatively new business structure allowed by state statute. Legal and tax considerations enter into selecting a business structure.

PRACTICE TIP:  Consult an attorney and an accountant as to what structure is the best for your business with regard to tax treatment, ease of operation, and liability.

Does your application ask about an applicant's criminal background? If you're in Illinois, it shouldn't.

Illinois' “Ban The Box” Law:  The Job Opportunities for Qualified Applicants Act, which took effect January 1, 2015, prohibits private employers with 15 or more employees, as well as all employment agencies, from asking about, requiring disclosure of, or considering an applicant’s criminal history, until the employer/employment agency has decided that the applicant is qualified for the job and has notified the applicant of his or her selection for an interview or – if there is no interview – until a conditional job offer has been made.  There are some exceptions for safety sensitive positions.

PRACTICE TIP:  Make sure your employment applications no longer have ANY questions related to criminal records.  Background checks may still be done, but not at the application stage.

Pregnancy & the Workplace - Illinois Human Rights Act

Do you have 15 or more employees?  If so ...

The new amendment to the Illinois Human Rights Act requires all employers in Illinois to post in a conspicuous location on the premises of the employer, where notices to employees are customarily posted, a notice prepared by the Department and to include in any employee handbook information regarding an employee's rights under this amendment to the Illinois Human Rights Act regarding pregnancy in the workplace and an employer's obligation to accommodate pregnancy.

PRACTICE TIP:  Make sure you review ALL of your employee postings once a year to determine if there have been any changes.