Labor: Rock and a Hard Place

In Homer's epic poem, The Odyssey, Odysseus travels 10 years through intense perils to return home after the Trojan War. One adventure finds Odysseus and his men navigating a narrow channel between a dangerous monster, Scylla, and a deadly whirlpool, Charybdis. To avoid the whirlpool, Odysseus learns that he must sail very close to the monster. Only through crafty maneuvering is Odysseus able to escape both perils. Like Odysseus, employers often find themselves treading a careful path between dangers, making difficult decisions in the face of laws that pull in different directions.

This article examines three commonly faced situations related to employment law: immigration, labor relations and disability/medical leave.

USCIS Challenges the Employment Relationship

In the immigration world, there is a new dilemma. Per the United States Citizenship and Immigration Service (USCIS), employers - particularly those whose employees work at client locations - must now submit evidence establishing a bona fide employer/employee relationship to qualify for H-1B and L work authorization. To prove the existence of the relationship, among other things, an employer must produce handbook policies explicitly establishing a right of control over salary, benefits, payroll procedures, performance evaluations, project review procedures and detailing supervisory roles. Most employers do not have such policies in the interest of maintaining at-will flexibility and, furthermore, are accustomed to a presumed employment relationship. Right of control issues arise only when employers defend independent contractor classification. USCIS also expects all third party assignments to be based on specific contracts, statements of work and itineraries, which are not common in the context of consulting practices. Moreover, many businesses do not have the power in their contracting relationships to demand the specific procurement processes and language that USCIS now requires. Employers who rely on H-1B and L talent must consider whether to cease doing so or adopt new policies and procedures.

GINA Brings New Dangers

In situations involving leave for disabled, injured, or sick employees, the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA) and workers compensation laws present choices similar to those faced by Odysseus. The tensions between these laws are well-known, from the obligation to hold an employee's job open, to what medical information may be required by the employer, to the ability to terminate. Now, the Genetic Information Non-Discrimination Act (GINA) adds requirements about the acquisition and use of family medical history and other genetic information to the mix. Employers must be mindful of the GINA's reach when attempting to comply with the ADA, the FMLA, and workers compensation laws (and, perhaps, when requesting a fitness for duty verification).

Management Rights Eroded

The National Labor Relations Act (NLRA) and the many legal safeguards (statutory or common law) that enable a business to protect itself against unfair competition, interference with business relationships and defamation, can present similar challenges for employers threatened by aggressive employee action. The NLRA grants employees (union and non-union) the right to engage in protected concerted activity regarding the terms and conditions of employment. Employer policies requiring employees to maintain the confidentiality of personnel information have long been deemed to violate the NLRA because the freedom of employees to openly discuss wages and other conditions of employment is important to protected concerted activity. But, what constitutes protected concerted activity is a moving target. It includes bargaining, organizing, and picketing, of course, but, as recently alleged by the National Labor Relations Board in its complaint against American Medical Response of Connecticut, it also may include openly criticizing a supervisor on Facebook, or accusing an employer of fraud - to its biggest customer - without evidence of wrongdoing. Attempts by an employer to run or protect its business may easily run afoul of the NLRA.

There is no easy path through these challenges, however, employers may learn from Odysseus' example by educating themselves about surrounding perils and making informed decisions.

Read Melissa Calhoon Jones' next column.

Melissa Calhoon Jones

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