Business LawEmployment Law Update – Legal-mail no. 2018-11

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H-1B PREMIUM PROCESSING SUSPENSION AND FEE INCREASE. On September 11, 2018, the USCIS suspended premium processing for most H-1B petitions. The Agency announced that the suspension will last until February 19, 2019. In addition to suspending the program, the USCIS has also announced that effective October 1, 2018, the filing fee for premium processing will be increased from $1225 to $1410. The H-1B applications that will be most affected are H-1B employees seeking to leave their current job for another employer, which can no longer be premium processed. In today’s political environment, H-1B employees are understandably reluctant to leave a job until they are sure their H-1B transfer has been approved. That is no longer an option, as current processing times for H-1B applications are 5-7 months. As a result, H-1B employees are less likely to change jobs, even for higher salaries, further restricting labor supply in our current tight job market. More information can be found at the following link or by contacting our partners, Lewis Francis and Lesley Manley, who specialize in immigration law. https://www.uscis.gov/news/uscis-extends-and-expands-suspension-premium-processing-h-1b-petitions-reduce-delays.

DEPARTMENT OF LABOR PUBLISHES NEW FMLA FORMS. On September 4, 2018, the U.S. Department of Labor published its long-awaited new Family & Medical Leave Act (FMLA) notices and certification forms. For those of you who love the current FMLA forms and notices, we have good news for you—the new forms are identical to the old forms. Like milk, FMLA forms expire and are branded with an expiration date. You will notice an expiration date of May 31, 2018 in the top right corner of the old FMLA form. This expiration date is the only change you will find in the new form, which are branded with an August 31, 2021 expiration date in the top right corner. FMLA forms are scheduled for a further review, and possible update, by this new expiration date in 2021. You can download the “new” FMLA forms on the DOL website here: https://www.dol.gov/whd/fmla/2013rule/militaryForms.htm.

#METOO REACHES CBS: On September 9, 2018, after six additional women accused him of sexual assault and harassment, Leslie Moonves stepped down as CEO of CBS. Moonves now stands accused of sexual misconduct by at least 12 women. The accusations of sexual misconduct allegedly took place between the 1980s and early 2000s, and include allegations that Moonves promised to help women with their careers in exchange for sexual favors. Moonves denies all allegations of misconduct, but admits to consensual sexual relationships with three of his accusers. More on the story, from CBS, is available here: https://www.cbsnews.com/news/leslie-moonves-six-more-women-accuse-cbs-ceo-of-sexual-assault-or-harassment/.

HR PROFESSIONALS THWART SEXUAL HARASSMENT. On August 28, 2018, national SHRM published Thwarting Sexual Harassment: 5 Success Stories, by Jathan Janove. In this article, Janove observes that “an unfortunate consequence of all the media coverage is that human resource professionals have been widely portrayed as either complicit or ineffective when attempting to address sexual harassment.” Janove notes that “while there are surely negative examples that HR practictioners can learn from . . . what’s missing from the dialogue are positive case studies, which can be equally instructive.” Janove highlights five success stories in his article “when HR professionals did the right thing—morally, ethically and legally—to protect both their workers and their employers.” One of these positive case studies highlights the HR professionals working at Utah-based 1-800 Contacts, and their work with Mike O’Brien of Jones Waldo. You can find the article on SHRM’s website at this link: https://www.shrm.org/hr-today/news/hr-magazine/0918/pages/thwarting-sexual-harassment-5-success-stories.aspx.

TENTH CIRCUIT ISSUES IMPORTANT ADA REASSIGNMENT CASE. The Americans with Disabilities Act (ADA) defines “reasonable accommodation” to include “reassignment to a vacant position.” On August 17, 2018, the United States Tenth Circuit Court of Appeals (the federal appellate court for Utah federal district court cases), issued an important decision that provides guidance to employers when an employee seeks job reassignment as a disability accommodation under the ADA. The case, captioned Lincoln v. BNSF Railway Co., involves two railway employees who were injured during a tank car spill that exposed the employees to a hazardous chemical and rendered them unable to work outdoors—an essential function of their railway jobs. After the employees disclosed their medical condition to BNSF, it released them from service due to safety concerns. The employees each applied for more than twenty vacant (and indoors) jobs at BNSF. BNSF had an established and written policy only to hire the most qualified job applicant. Although the employees met the minimum qualification criteria for most of the open jobs, BNSF did not hire them for any of these positions because it believed another applicant was more qualified. The employees filed charges with the EEOC and ultimately filed suit in federal court alleging that BNSF failed to accommodate their disability when it did not reassign them to a vacant position. A federal district court in Kansas entered a summary judgment that BNSF had not failed to accommodate these employees, and an appeal was taken to the Tenth Circuit.

The Tenth Circuit explained that, “in most situations, an employer must award the position to the disabled, but qualified, employee. In this sense, the ADA’s ‘basic equal opportunity goal’ sometimes requires an employer to afford a disabled employee preference in the hiring process.” To state a claim for failure to accommodate, employees must show as part of their “prima facie” case that they (1) are disabled, (2) are qualified, and (3) requested a “plausibly reasonable accommodation” (e.g., job reassignment). If an employee makes this initial showing, the evidentiary burden shifts to the employer to show that the requested accommodation was unreasonable or would have imposed an undue hardship. BNSF argued that the existence of its most-qualified-applicant policy defeated the plaintiff’s prima facie case. The Tenth Circuit rejected this argument, but held that evidence of such a “policy properly comes into play once the burden shifts to the employer” to show that the accommodation requested was unreasonable. The Court explained:

For instance, the employer could point to its policy and argue that while the employee was technically qualified for a given position, the employer’s qualifications for the position fell significantly below the qualifications of other applicants such that reassignment is not reasonable or would place an undue hardship on the employer.

The Tenth Circuit analyzed the positions for which the employees had applied, and for some, vacated the dismissal and remanded the case back to the district court for further proceedings to determine if the employer could meet its evidentiary burden to show that the employees’ job reassignment request was unreasonable.

This case presents some important takeaways for employers. Reassignment to a vacant position is generally required when it is the only accommodation that will work to remove a workplace barrier for a disabled, but qualified, employee. However, this new decision gives some protections to employers and makes clear that a disabled worker’s entitlement to a vacant position is not absolute. If you are considering reassignment as a last resort accommodation, and your disabled worker is not selected for a vacant position, you should carefully document how the disabled worker “fell significantly below the qualifications” of the selected applicant.

Written by: Employment Attorneys –

Michael Patrick O’Brien (mobrien@joneswaldo.com)

Mark D. Tolman (mtolman@joneswaldo.com)

Jesse M. Oakeson (joakeson@joneswaldo.com)

Marci B. Rechtenbach (mrechtenbach@joneswaldo.com)

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