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SCOTUS Decides Kansas I-9 Case – What Does It Mean for Employers?

Last week, the Supreme Court of the United States decided Kansas vs. Garcia, ruling that the State of Kansas could prosecute individuals for identity theft under Kansas law when they used other persons’ Social Security numbers to gain employment. While the case involved criminal law issues, read on to see the practical impact this could have on Kansas employers.

The controversy arose when three undocumented immigrants without Social Security cards were charged with and convicted of identity theft after they used another person’s Social Security number on a Form I-9 to be hired at a restaurant. The three immigrants also used the false Social Security numbers on other documents, including federal and state tax withholding forms.

In 2017, the Kansas Supreme Court ruled that the State of Kansas is not permitted to base prosecutions on information contained on an I-9. But on March 4, 2020, the United States Supreme Court reversed. All nine justices agreed that the Immigration Reform and Control Act (IRCA) does not expressly preempt states from prosecuting individuals for identity theft and fraud. A five-justice majority also agreed that IRCA does not impliedly preempt states from applying their state identity theft and fraud statutes. The majority noted that the State of Kansas’s prosecutions were based on the false Social Security numbers the immigrants provided in tax-withholding forms, rather than their I-9s.

So what does this decision mean for employers? The case clears the way for employees to be prosecuted for state      Continue Reading...

Splitting Hairs: Proposed Kansas Law Would Prohibit Discrimination Based on Hairstyle

Throughout the United States, a trend is emerging within state legislatures to amend state anti-discrimination laws to protect hairstyles such as afros, braids, locs, and twists. California, New York, and New Jersey were the first states to pass such laws, and Kansas may be next.

Recently introduced Senate Bill 250 would amend the definition of “race” under the Kansas Act Against Discrimination to include hairstyles. Specifically, the bill would expand the definition of “race” to include “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” And it would define “protective hairstyles” to “include, but not [be] limited to, such hairstyles as braids, locs, and twists.”

Proponents of the bill believe the amendment is necessary to protect against race-based discrimination of African Americans in the workplace. Some do not believe the bill goes far enough by failing to expressly include afros.

Those who disagree with the bill are concerned the amendment could undermine employer grooming policies and dress codes and put workers at risk if there are bona fide safety or hygienic reasons that require employees to secure their hair back.

Regardless of whether the bill becomes law, it may be a good idea for Kansas employers to review their dress codes and grooming policies with these considerations in mind. The EEOC has already taken the position that “race” is not limited to skin color and includes other physical and cultural characteristics associated with race, including a particular hairstyle or      Continue Reading...

Can a Face Mask Land You in the Penalty Box?

Just a quick heads-up for employers in this challenging period. With everyone thinking about COVID-19 and worrying about exposure, some individuals have become enamored with the idea of wearing a face mask for personal protection. 

In the past few days, I have observed a number of people wandering the streets wearing face masks. So it may only be a matter of time before an employee wants to wear one in your workplace. 

While this may seem harmless, employers should be cautious with respect to the use of face masks in the workplace. There is a much deeper discussion that the employer may need to have with regard to this issue. 

If the face mask is a respirator (think N-95), the voluntary use of a respirator in the workplace can draw an employer into the provisions of OSHA’s Respiratory Protection standard.  Going a step further, if an employer decides to require the use of a face mask that is considered a respirator, the requirements under the standard become even more onerous. 

In this time of paranoia and hasty reactions, don’t let yourself get checked into the boards by allowing the use of a face mask or dust mask in the workplace that is actually deemed a respirator, without first getting advice from legal counsel.

Don't Miss the Kansas Employment Law Institute

The 2020 Kansas Employment Law Institute will be held on May 12 at the Hyatt Regency in Wichita. This comprehensive, full-day seminar covers the latest employment law developments, as well as human resources best practices and strategies to help make organizations “employers of choice.”

Sessions will be presented by experienced Foulston employment lawyers and one panel of your HR peers. Attendees can select from a variety of breakout sessions to customize their own schedule. Topics will include the following:

  • 2020 Vision: A Look at the Latest Employment Law Cases, Issues, and Trends
  • Waves of Change from the Department of Labor, National Labor Relations Board, and Other Federal Agencies
  • Employment Law "The Price Is Right"
  • Hot Topics in Employee Benefits
  • Successfully Navigating DOL Wage and Hour Audits
  • FMLA Nuts and Bolts
  • Advanced FMLA Scenarios
  • Things I Wish Someone Would Have Told Me When I Was New to HR

In addition, keynote speakers Jarrett Green and Rebecca Green will present How to Build Happier, More Resilient, More Productive, and Better-Performing Teams. This session will focus on how employers and HR pros can build deep employee loyalty and trust, motivate and inspire their teams, and unlock their employees’ highest potential through innovative self-awareness, mental reframing, and communication techniques. Jarrett and Rebecca work with corporate clients such as US Bank, Tesla Motors, NBC-Universal, and Allstate Insurance Company, as well as many of      Continue Reading...

An Employer's Guide to Avoiding Tattoo Nightmares

Perhaps your parents warned you as a teenager that if you got a tattoo, you would never get a good job. But millennials have turned this adage on its head.

Tattoos are no longer taboo. Nearly half of millennials have at least one tattoo, and the workforce is becoming more inked than ever before. As the popularity of tattoos (and tattoo reality-TV shows) continues to grow, employers may wonder whether to permit the visible display of tattoos in the workplace. Here are some tattoo policy tips for both private and public employers.

Tips for Private Employers

If you are a private employer, you may generally adopt dress code policies that require employees to cover their tattoos at work if their display could harm the company’s public image or otherwise interfere with your business. But you should also take precautions to prevent discrimination claims that could arise from a tattoo-concealment policy. These precautions include: (1) stating a legitimate business reason for adopting the policy; (2) applying the dress code equally to all similarly situated employees; and (3) enforcing the dress code consistently.

Any tattoo-concealment policy should be compliant with local, state, and federal anti-discrimination laws, and employers should be careful that the policy does not disparately impact protected classes. For example, if only employees of a certain nationality or gender are disciplined for failing to cover their tattoos, then those employees might allege that the policy is pretext for illegal discrimination. The same would be true if an employer refused to hire      Continue Reading...

Confidentiality in Workplace Investigations

Employers often ask employees involved in a workplace investigation to refrain from discussing details of the investigation. But confidentiality in workplace investigations has become a hot topic in recent years due in part to contradictory guidance given by the National Labor Relations Board (NLRB) on one hand, and the Equal Employment Opportunity Commission (EEOC) and Occupational Health and Safety Administration (OSHA) on the other.

The EEOC and OSHA consider confidentiality a valuable part of workplace investigations. Indeed, the EEOC suggests anti-harassment policies specifically include “assurance that the employer will protect confidentiality of harassment complaints to the extent possible.” Consistent with the EEOC’s and OSHA’s view, many employers consider admonishing witnesses to keep their interview confidential a critical part of workplace investigations.

However, the NLRB hasn’t always been on the same page. In 2015 the NLRB determined that an HR consultant violated Section 7 of the National Labor Relations Act (NLRA) – which protects employees’ rights to engage in “concerted activity” for better workplace conditions – by asking employees not to discuss ongoing investigations with their coworkers. Thus, according the NLRB’s view at the time, blanket confidentiality policies violate the NLRA, and the only way an employer can require employee confidentiality in a workplace investigation is if it can show a legitimate business justification specific to the investigation that outweighs an employee’s Section 7 rights. Banner Estrella Medical Center, 362 NLRB 1108 (2015).

But late last year the Trump Administration NLRB reversed course and overruled that prior decision. It explained that “the justifications associated      Continue Reading...

Foulston Employment Lawyers Recognized as "Stars" By Lawyer-Ranking Group

Once again, Foulston Siefkin LLP is the only law firm rated as “Highly Recommended” (the highest rating) for labor and employment litigation in Kansas, according to Benchmark Litigation’s 2020 rankings.

In addition to its law firm ratings, Benchmark Litigation also recognizes the work of individual lawyers. Eight Foulston lawyers were ranked as “Labor & Employment Stars”: Jim Armstrong; Vaughn Burkholder; Boyd Byers; Tara Eberline; Forrest Rhodes; David Rogers; Teresa Shulda; Todd Tedesco; and Rachel Wetta.

Benchmark Litigation, which describes itself as a guide to leading litigation firms and attorneys, bases its rankings on data such as peer lawyer interviews and information about the volume, type, and complexity of litigation a firm and its lawyers handle.

Looking Ahead: Hot Employment Law Issues for 2020

What issues and trends do we see on the horizon for employers in 2020? Here are some hot employment law issues that may impact your organization or give you food for thought. 

  • Arbitration Provisions. The Supreme Court has made it clear that class action waivers in employment agreements requiring employees to arbitrate legal disputes are valid and enforceable. More and more employers are using such arbitration agreements to limit liability exposure for employment law claims. Is this a good option for your company?
  • Marijuana Legalization. Colorado has legalized recreational marijuana; Oklahoma and Missouri have legalized medical marijuana; and Nebraska has decriminalized marijuana usage. What does the future hold for Kansas? Even aside from potential legal changes, some Kansas employers have decided to stop testing for marijuana use in light of the tight labor market and changing public perceptions.
  • Ban the Box. Kansas state employers under Governor Kelly's jurisdiction and employers in Kansas City, Missouri, are now prohibited from asking about criminal history until after a conditional offer has been made. Many other states and cities have also “banned the box.” As an employer, should you continue to use criminal history to automatically disqualify job applicants?
  • LGBTQ Protections. In 2020, the U.S. Supreme Court is expected to decide the hotly debated question whether Title VII’s prohibition of discrimination based on sex extends to sexual orientation and/or      Continue Reading...
A Christmas Story: Tales of Woe and Joy from the Holiday Party

Now that the holidays are over, we can look back on a year of accomplishments and success. Or, for some, we can start the new year with HR headaches resulting from the annual holiday party.

The Naughty List
Holiday parties are ripe for mischief and mistakes. The following are true stories of office parties that went horribly awry.
  • A California bank branch held an annual holiday party at a local restaurant. There were only about 15 people in attendance, but they included a female bank teller, the teller’s female boss, and the boss’ boyfriend (a manager at a different bank branch). The entire affair, including the alcohol, was funded by the bank’s budget. The office party officially ended, but the party-goers continued their revelries. But once the bank’s party ended, the bank employees had to fund their own cocktails. The party continued into the restaurant bar area, then moved to another bar as the night progressed, and finally ended up at the boss’s house. You can probably see where this is going. The teller ultimately accused her boss and the boss’s boyfriend of sexual harassment, and brought suit against the bank, alleging that the bank should have foreseen the harassment, particularly in light of the alcoholic drinks that were provided at the holiday party. The trial court ultimately found the bank wasn’t liable, largely because the office party ended, and the drinking that continued wasn’t on      Continue Reading...
Save the Date: 2020 Employment Law Institute

Mark your calendars now for Tuesday, May 12, 2020, the day of Foulston’s annual comprehensive full-day employment law seminar! We’ve been planning since last summer, taking note of attendees’ feedback to us, staying on topic of human resources trends, and tracking new cases, laws, and regulations.

We’re especially excited to bring you the 2020 Employment Law Institute keynote speakers, Jarrett Green and Rebecca Green. Their presentation focuses on how employers and HR pros can foster peak performance through mindfulness and stress management. Jarrett and Rebecca’s work began with helping high-stress professionals find ways to improve their emotional well-being, cognitive skills, and productivity to enhance career success. They have found that the same principles are effective across most companies and for workers of all levels, and are now delivering their workshops and presentations to corporations such as Tesla Motors, US Bank, NBC-Universal, and Allstate Insurance Company.

You can learn more and register early at www.foulston.com/employmentlawinstitute.

Questions or suggestions? Call or email conference manager Adrienne Clark at aclark@foulston.com or 316-291-9721 or employment practice group chair Boyd Byers at bbyers@foulston.com or 316-291-9716.

Don't Ask, Don't Tell? Good Reasons to Stop Asking About Salary History

Does your company ask about salary history during the application and hiring process? If so, you may want to re-think that approach.

Nationwide, women earn about 85% of men’s wages, and Kansas is no exception. In an effort to help reduce the gender pay bias, a growing number of states and cities have banned employers from inquiring about salary history during hiring. The rationale behind these bans is that, when salary offers are based on salary history, women who have been previously underpaid will continue to be underpaid. Thus, salary history inquiry bans aim to stop the cycle of underpaying women.

Salary history inquiry bans have been adopted from coast to coast—from California to New York City—and now, Kansas City, Missouri, has joined their ranks. Effective October 2019, the Kansas City ordinance generally prohibits an employer with six or more employees from engaging in certain hiring practices, including: (1) inquiring about a job applicant’s salary history; (2) searching public records to obtain salary history; (3) relying on salary history to make hiring decisions; and (4) retaliating against an applicant for failing to disclose salary history. These prohibitions do not apply to applicants for internal transfers or promotions with their current employer, and employers are permitted to discuss salary expectations with applicants.

If your company operates in Kansas City, Missouri, or other locations with salary history inquiry bans, you obviously need to update your hiring procedures accordingly, or risk liability and penalties down the road.

But even if an employer is not subject to a state      Continue Reading...

"Magic Words" Not Needed to Trigger ADA Obligations

The Tenth Circuit Court of Appeals (which has jurisdiction over Kansas) recently reiterated the rule that employees do not need to use “magic words” to request a reasonable accommodation for a disability.

This case involved a garbage truck driver named Roy Mestas who worked for the town of Evansville, Wyoming. Mestas slipped on the ice while working, hurt his back, and was on medical leave for six weeks. Mestas claimed that when he returned, his bosses treated him worse than his co-workers because they were upset with him for getting hurt and missing so much work.  
One day, when he was assigned to remove snow, Mestas asked his boss if he could use his own snowblower to assist with the task, which he thought would help with his back pain. The boss denied this request. The next day, Mestas asked his supervisor to be excused from shoveling snow because he reinjured his back, but the boss just hung up in response. Mestas alleged that when he called back, his supervisor said he “didn’t want to hear [his] sh**.”
Mestas said that when he returned to work a week later, his supervisor fired him because “things were not working out,” and told him to go “take care of [his] back and whatever.”
Mestas sued under the ADA. On appeal, the Tenth Circuit found that he had raised a triable issue of fact about whether he had      Continue Reading...
Overland Park Enacts LGBTQ Discrimination Ban

The Overland Park City Council recently approved a nondiscrimination ordinance that makes it unlawful to discriminate an employee based on sexual orientation or gender identity. In doing so, Overland Park, the state’s second-largest city, follows other Kansas cities such as Kansas City (Kansas), Lawrence, Manhattan, Merriam, Mission, Prairie Village, and Roeland Park.

About half the states now prohibit discrimination against applicants and employees based on LGBTQ status, but Kansas is not among them. However, companies that have contracts with the State of Kansas are subject to an executive order that bans discrimination on the basis of sexual orientation or gender identity.

The Overland Park City Council approved its ordinance just one day before the U.S. Supreme Court heard oral arguments in a set of cases that test whether federal nondiscrimination laws protect LGBTQ employees. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex. The Supreme Court will decide whether the statute protects employees who claim they were subjected to discrimination because of their sexual orientation or transgender status.

Even if the Court decides that Title VII doesn’t prohibit discrimination based on sexual orientation, employers still need to be aware of state and local laws, like the Overland Park ordinance, that extend legal protections to LGBTQ employees.

Exorcise "Ghost Policies" from Your Employee Handbook

Is your employee handbook or policy manual haunted by shadowy policies and provisions that are treated as if they aren’t even there? Such “ghost policies” can creep into a handbook in any number of ways. They may be relics of the past that once lived useful lives—the legacy of long-ago-departed HR managers—their original purpose now unknown. They may be more-recent additions that never caught on. Or they may simply be the result of error (not yours, of course).

You should be afraid—be very afraid—of ghost policies. Left floating in your handbook, they can give rise to legal claims or liability.

‘Dord’: A Ghost Word

What is dord? According to the second edition of Webster’s New International Dictionary, it’s a noun that means density, as used in physics and chemistry. But it was never a real word. Dord is what lexicographers call a “ghost word”—a word that comes into use or gets published because of misinterpretation, misreading, typographical or linguistic confusion, or other error.

So how did the non-existent word dord end up in the dictionary? In the first edition of Webster’s, entries for abbreviations and words were intermingled. But in the second edition, abbreviations were moved to a separate section at the back of the book. An editor created a card with the notation “D or d, cond/density,” meant to indicate that the new edition should include D and d as abbreviations for density. The note card mistakenly ended up in the words pile, and the phrase “D or d” was misinterpreted      Continue Reading...

DOL Proposes New Rules for Tipped Employees

If your business has employees who receive tips, you need to know about the Department of Labor’s (DOL) proposed changes to its tip regulations.

As background, the Fair Labor Standards Act (FLSA) generally requires covered employers to pay employees at least the federal minimum wage, which is currently $7.25 per hour. However, the FLSA allows employers to pay tipped employees as little as $2.13 per hour and apply their tips as a credit toward satisfying the full minimum wage (the “tip credit”).

In 2018, the FLSA was amended to provide that an employer “may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit.” The 2018 amendment also rescinded DOL regulations that prohibited employers from requiring tipped employees (such as servers and bartenders) to share their tips with traditionally non-tipped employees (such as cooks and dishwashers), even when the employer does not take a tip credit.

The proposed new regulations would further implement and clarify these 2018 statutory changes. The main provisions are as follows:

  • Employers, managers, and supervisors are prohibited from keeping employee tips (including participating in tip pools) under any circumstances.
  • If the employer pays all employees at least the full federal minimum wage (meaning the employer is not taking a tip credit), then the employer can establish required tip pools between all workers, including customarily and      Continue Reading...

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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