May 26, 2011
This morning, the Supreme Court announced its decision in Chamber of Commerce v. Whiting, a case challenging Arizona's immigration law. The law imposes strict sanctions -- the suspension or revocation of business licenses -- on employers who intentionally or knowingly hire unauthorized workers. It also requires Arizona businesses to use the federal government's electronic system for verifying work authorization, E-Verify.
A group of business and civl rights organizations challenged the law, claiming that it was preempted by the federal Immigration Reform and Control Act (IRCA). The Supreme Court disagreed. Although IRCA does preempt many types of state laws that attempt to control illegal immigration, it includes an exception that allows states to pass and enforce licensing and similar laws. Because the Arizona law imposes its sanctions through the suspension and revocation of business licenses, it falls into this exception and can coexist with IRCA. The Court also noted that Arizona took pains to bring its sanctions scheme into harmony with IRCA by, for example, using the federal definition of "unauthorized alien" and deferring to the federal government's determination of an employee's authorization to work in the U.S.
The Court also upheld the requirement that Arizona employers use E-Verify to check on work authorization. Although the statute authorizing the E-Verify program prohibits the Secretary of Homeland Security from requiring any employer outside the federal government to use E-Verify (unless the employer has already violated the law), it doesn't impose any limits on state laws mandating use of E-Verify.
Several other states have passed laws similar to Arizona's, and others are likely to follow on the heels of the Court's opinion today.
May 12, 2011
Earlier this week, the federal Department of Labor (DOL) announced the release of its first smartphone application: a timesheet that allows employees to keep track of their work hours and calculate how much they are owed, in straight wages and overtime. (I learned about it over at the Workplace Prof Blog.) The DOL says it hopes to provide updates to the free app that allow employees to keep track of bonuses, commissions, tips, holiday pay, and more.
As the DOL press release says, the information this app helps employees track "could prove invaluable" in a Wage and Hour Investigation. Here's why: If an employer fails to keep accurate records of hours worked by its employees (as required by the Fair Labor Standards Act), then the DOL will presume that any records the employees can produce are correct. The employer can try to overcome this presumption, but without proper wage and hour records -- and facing employees who have tracked their hours in real time on their smartphones, using an app created by the government agency conducting the investigation -- it's going to be a steep uphill battle.
May 3, 2011
A few days ago, Thomson Reuters reached a tentative contract with the Newspaper Guild (the union that represents hundreds of its employees). According to an article by Steven Greenhouse in the New York Times, the deal finally came -- settling a dispute that's gone on for more than two years -- at the end of a 21-hour negotiating session. The deal settles a number of contested issues, including raises, payments to employees to cover wages lost while there was no contract, benefits, and scheduling.
And then there's that Twitter complaint: As I posted last month, the National Labor Relations Board confirmed that it was considering bringing a complaint against Reuters over many issues in the ongoing dispute, including the company's apparent reprimand of an employee for Tweeting a criticism of its dealings with the union. This was just the latest indication of the NLRB's interest in social media -- and more particularly, whether employer efforts to police what employees say online about the company are violating employee rights to communicate and act collectively.
As part of the tentative deal, Reuters has agreed to negotiate a new policy on social media, which will explicitly protect the rights of employees to engage in protected concerted activities: to speak about, and take action regarding, the terms and conditions of their jobs. Reuters has its current policy and guidelines for reporters on use of social media (part of its Handbook of Journalism) posted on its website. I really hope the company also posts its new policy, once it's available. That would be a huge help to employers trying to navigate this developing area of law and commerce.