May 18, 2023

Agency Updates Employers Need to Know 

Federal agencies have kept busy over the past month, with several releasing decisions or guidance directly related to the workplace. Employers should be aware of what these actions mean for the way they conduct their operations or engage with their employees. Below we cover some of the most important recent developments.

NLRB Decision Protecting Employee Outbursts

On May 1, 2023, the National Labor Relations Board (NLRB or the Board) released a decision analyzing whether an employer violates the National Labor Relations Act (NLRA) by disciplining an employee for outbursts made in the context of NLRA protected activity (such as discussing wages or benefits with other employees, picketing, bargaining with management, and more). The case, Lion Elastomers LLC, follows a new trend, in which the NLRB overturns recent precedent in favor of an older, more employee-friendly standard.

Under the prior rule, articulated in the overturned General Motors LLC case, an employee could be disciplined for an outburst made in the context of protected activity if the employer would have disciplined the employee even outside of that context.

In Lion Elastomers, the Board now establishes a “setting-specific” approach to discipline of employee outbursts in the protected activity context. Instead of a bright-line, motive-based analysis of the discipline, the Board now will look to a range of factors depending on the “setting” in which the outburst was made. Specifically, the Board created three different standards for three different settings.

  1. For outbursts made in the course of a confrontation with management, the Board will now use the Atlantic Steel test which looks at where the confrontation took place, the subject matter of the interaction, the nature of the specific outburst, and whether the employer could be said to have provoked the outburst.
  2. For social media posts and situations involving conversations among employees in the workplace, the Board will use the Totality-of-the-Circumstances test. This test looks to, as the name implies, the totality of the circumstances surrounding the outburst without regard to any particular factor.
  3. For misconduct or outbursts in a picket line context, the Board will use the Clear Pine Mouldings standard. This standard is similar to the totality of the circumstances analysis, but specifically looks to whether non-striking employees would have reasonably been coerced or intimidated by the specific misconduct or outburst. If so, then employer discipline is proper.

A “common principle” uniting these tests, the Board says, is that “conduct occurring during the course of protected activity must be evaluated as part of that activity—not as if it occurred separately from it and in the ordinary workplace context.” This approach, however, could create problems for employers as it relates to antidiscrimination laws. It is easy to imagine an employee who, in a heated exchange with management, uses racist or sexist language directed at an employer or another employee. Under Lion Elastomers, employers must be cautious when disciplining such behavior, using the appropriate test articulated above. The Board failed to explain how to resolve this potential conflict, but did note that it may “take into account a possible conflict with another Federal statute” when reviewing discipline handed down in this context.

Employers should be aware of this change in the law and proceed thoughtfully when disciplining employees for outbursts or misconduct made in the context of protected activity.

EEOC COVID-19 Guidance

On May 11, 2023, the Department of Health and Human Services announced the expiration of the Public Health Emergency related to COVID-19. In response on May 15, 2023, the Equal Employment Opportunity Commission (EEOC) updated its long-running, technical guidance document, explaining how employers are to balance various antidiscrimination laws with the lingering prevalence of COVID-19 in the workplace.

In this latest update, the EEOC answered numerous hypothetical questions on topics such as: disability-related inquiries and medical examinations, the handling of confidential medical information, disability and reasonable accommodation, pandemic-related harassment, and more.

Beyond the detailed Q&A (which employers should read if they have specific questions), the primary effect of this updated guidance is twofold.

First, it reminds employers that medical inquiries and examinations must be job related and consistent with “business necessity.” That said, the EEOC stresses that this term is broad, including consideration of whether a person may have COVID-19 and could poses a “direct threat” to the workplace under the ADA.

Second, employers should continue to review relevant medical and public health authority related to COVID-19, because these sources may determine how relevant EEO laws are interpreted in the COVID-19 context. The EEOC recommends “that employers and employees routinely check for guidance updates from CDC, FDA, and other medical and public health authorities” because guidance from these authorities “may be relevant to making certain legal determinations under one or more EEO laws (e.g., ‘direct threat’ under the ADA).”

The broader takeaway is that employers may, but need not, continue some of the COVID-19 protocols that have been in place throughout the pandemic. Employers should be aware that the interpretation of EEO laws can change with the changes in guidance from various public health authorities.

Changes to I-9 Remote Screenings

Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers are required to properly complete Form I-9 for each individual they hire for employment in the U.S. A key component of the I-9 process includes the presentation of documents evidencing the identity and employment authorization of an employee. Employers are required to examine these documents and determine their genuineness.

During the height of the COVIC-19 pandemic, the Department of Homeland Security (DHS), through Immigration and Customs Enforcement (ICE), relaxed the requirement for in-person review of I-9 documents. ICE determined that, due to the risks associated with COVID-19, remote review of I-9 documents was sufficient for remote employees. ICE extended this determination several times since its inception, most recently October of last year.

On May 5, 2023, ICE announced that this temporary relaxation of the physical presence requirement with respect to I-9 document inspection would end on July 31, 2023. Along with this announcement ICE released a guidance document, in the form of a Q&A, answering many questions that employers may have about this change.

Not only does the announcement end the remote examination of I-9 documents, it also requires that employers physically examine documents for employees hired on or after March 20, 2020, whose I-9 documents were inspected remotely.

ICE also notes that if an employee’s immigration status has changed between the time of remote inspection and the in-person inspection, an employer must either: (1) complete Section 2 (Employer Review and Attestation) on a new Form I-9 and attach it to the Form I-9 previously used for the remote inspection (and note in the Additional Information field that the employee’s immigration status has changed); or (2) provide the document title, document number, issuing authority, and expiration date (if any) of the new document and note that the employee changed their immigration status in the Additional Information field of the original Form I-9.

Employers with employees whose I-9 documents were reviewed remotely should be aware of this upcoming change.

If you need any assistance interpreting or complying with any changes in the law brought about by recent agency action, please contact Payne & Fears LLP.