By Bruce E. Buchanan*

As I have reported in several past newsletters, the National Labor Relations Board continues to decide Social Media cases.  Additionally, the courts are issuing more and more decisions involving Social Media. In this article, I will discuss a NLRB decision and two court decisions involving Social Media.

Before I analyze the NLRB case, let’s briefly review how the NLRB gets involved in Social Media matters.  Under Section 7 of the National Labor Relations Act (NLRA), the NLRB covers not only union activities but also protected concerted activities – meaning employees engaging in concerted activities concerning their wages, hours or working conditions.  With the advent of Social Media, employees have been using Facebook, blogs, LinkedIn and similar media to concertedly complain about these matters.  Inevitably, the employer views the posting and sometimes decides to take disciplinary action against the employees. This causes the employee(s) to file a charge alleging a violation of Section 8(a)(1) of the NLRA.

In Bettie Page Clothing, 359 NLRB No. 96 (2013), the store manager and an employee were out partying when the manager tore her dress.  Incredibly, the manager told the employee to fix it and if she didn’t her work hours would be cut.  Thereafter, the employee, on behalf of herself and other employees, contacted upper management on this matter as well as other store and personnel matters.  Upper management visited the San Francisco store to investigate the complaints. 

Later, a dispute arose over the closing time of the store with employees seeking an earlier closing time for their safety when leaving the store.  Several employees requested this change to the store manager, who said she would talk to upper management.  However, nothing changed so an employee called upper management, who agreed to close the store an hour earlier.

When the manager found out about the call and the earlier closing time, she countermanded upper management and said the closing time would remain at the later hour.  Later that night, the employees posted several messages on Facebook complaining about the store manager.  One employee said she would bring a worker’s rights book to work so all employees would know their rights.  The employee brought the book to work and placed it in the break room.

The store manager found out about the Facebook postings from an employee, who accessed the employee’s Facebook page and viewed the postings.  She sent this information to upper management.

Several days later, two of the three employees involved in the Facebook postings were discharged because “things were not working out.” According to the employer, the employees were happy to be fired.  Later, the employer fired the final employee involved in the postings.

The Board found the employees’ Facebook postings were protected concerted activities, because it involved conduct of their supervisor related to employees’ terms and conditions of employment – the closing time related to employees’ safety and hours.  The Board rejected the employer’s defense that the employees “schemed to entrap their employer into firing them” causing their conduct to be unprotected.  Therefore, the Board ordered the three employees reinstated with back pay.

In Bland v. Roberts, No. 12-1671 (4^th Cir. Sept. 17, 2013), the 4^th Circuit Court of Appeals found in favor of a former deputy sheriff in Hampton, Virginia, who said he was terminated for “liking” the Facebook page of a candidate running against his boss for sheriff. “Liking” the campaign page, the court said, was the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.” The court also stated, “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.” Thus, the 4^th Circuit reversed the District Court and remanded the case for further litigation.

The 5^th Circuit Court of Appeals ruled in Rodriquez v. Wal-Mart Stores, Inc., No. 13-10154 (Sept. 19, 2013), a former manager, Virginia Rodriquez, failed to prove that Wal-Mart's legitimate reason for terminating her, namely, a violation of its social media policy, was a pretext for discrimination.

Wal-Mart's (the parent of Sam’s Club) social media policy prohibits any conduct that adversely affects job performance or other associates. It allows employees to post complaints online, but the comments cannot appear "unprofessional, insulting, embarrassing, untrue [or] harmful."

The company determined the manager posted a policy-violating comment on a photograph a co-worker shared on Facebook. The photograph depicted a party that the co-worker had hosted, with two cashiers from the Sam's Club location where the manager worked, who had called in sick to attend. Rodriquez posted this comment, “I hear that Caleb didn’t show up for work on this day what’s up with that?? He is partying with you guys?? WOW and Carrie tried to call in for him and knew about this. . . .”

Although Rodriquez promptly deleted the post, the co-worker, who hosted the party, complained to Sam's Club, and the company determined that the post violated the policy; thus, it discharged Rodriquez. The court also rejected Rodriquez's argument that discrimination had taken place because she had not actually violated the social media policy. It stated she had admitted to the facts that formed the basis of her social media policy violation.

With the rise in popularity of Social Media, the number of Social Media decisions by the NLRB and the courts will continue to grow. Employers would be wise to seek counsel and training on their policies and actions related to Social Media.

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*Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C., where he represents individuals and employers in all aspects of immigration law as well as employers in employment/labor law.  Mr. Buchanan blogs on employer immigration compliance issues for LawLogix (http://www.lawlogix.com/electronic-i9) and ILW.com (http://blogs.ilw.com/immigrationcompliance/). Mr. Buchanan graduated from Vanderbilt School of Law. He may be reached at bbuchanan@visalaw.com or (615) 345-0266.

By Jessica Lingo*

Conducting criminal background checks on prospective employees is a common practice for employers when hiring. It is in an employer’s best interest to provide a safe work environment for its employees, and such a practice can limit exposure to negligent hiring or retention claims. In 2012, 69% of employers reported conducting criminal background checks on all job applicants.[i] Recently, however, the EEOC has raised concerns with this practice, claiming that the use of conviction records to screen job applicants can result in discrimination.

While an individual’s criminal status is not protected under Title VII, the EEOC fears the use of conviction records can amount to disparate impact claims of discrimination, as certain minorities are convicted of crimes at a higher rate than whites. The EEOC suggests that blanket “no-hiring policies” for individuals with a criminal record disproportionately impact these minorities, and has subsequently filed lawsuits to that effect.

As recently as June 2013, the EEOC filed complaints against two prominent companies, Dollar General[ii] and BMW North America,[iii] asserting each employer’s use of criminal background checks in hiring decisions resulted in discrimination against African-Americans. The government claimed that both companies turned away applicants with criminal convictions, without examining whether such convictions were job-related, and without giving the applicants an opportunity to explain their circumstances.  These policies, the EEOC argues, “operate to exclude disproportionate percentages of blacks.”[iv]

As a result of this more aggressive application of the disparate impact analysis, many employers feel left with a Catch-22: Be exposed to negligent hiring and vicarious liability claims or risk an EEOC investigation and potential litigation. To help alleviate some employer concern, however, the EEOC issued enforcement guidance on the use of criminal background checks in hiring decisions in April 2012.[v] The guidelines stress that employers may continue to use criminal background checks so long as each applicant is given an “individualized inquiry.”  Convictions must be evaluated based on the nature of the crime, the crime’s relation to the potential job, and the time passed since the conviction. Arrests may not be considered, and employers must give applicants the chance to explain the circumstances of their criminal past.

Yet even with the EEOC’s guidance, many employers feel entitled to exclude applicants with convictions for any serious violent crime, even if the conviction is not strictly job-related. In fact, in the BMW complaint, the EEOC claimed that the company violated the “equal employment opportunities” of African-American applicants because the employer excludes all applicants convicted of “Murder, Assault & Battery, Rape, Child Abuse, Spousal Abuse (Domestic Violence) . . . [and] Weapons Violations.”[vi] Many employers feel that an attempt to limit screening of even these crimes is unacceptable. Fortunately for them, courts have largely opposed the EEOC’s position on the use of criminal background checks.

Most recently, in E.E.O.C. v. Freeman,[vii] the EEOC alleged the employer’s use of criminal background checks had a disparate impact on African-American, Hispanic and male job applicants.  The court, however, disagreed, and Freeman won on summary judgment. The Court acknowledged the “Hobson’s choice” in which employers are placed as a result of the EEOC’s stance on background checks. Furthermore, the Court expressed doubt that such a practice truly has a disparate impact on minorities. Ultimately, the Court noted the lawsuit itself was “a theory in search of facts to support it.”[viii]

Similarly, while not addressing the employer’s use of criminal background checks, the EEOC recently alleged the use of applicants’ employment credit reports constituted a discriminatory hiring practice. In E.E.O.C. v. Kaplan, the Northern District of Ohio ruled in favor of Kaplan on summary judgment, as the EEOC failed, again, to offer sufficient evidence that Kaplan’s practices had a disparate impact on African-American applicants.[ix]

Thus far, the EEOC has failed to show statistical evidence of disparate impact in any of the cases that have been decided.  As a result, these cases cast doubt on the EEOC’s assertions that employer use of background checks disparately impacts minorities. Freeman, in particular, undermines the EEOC’s contention that the use of criminal background checks has a disparate impact on certain minorities. Nonetheless, employers should be aware of the EEOC enforcement guidance, particularly while cases like BMW and Dollar General are still pending. Until more courts oppose the EEOC, employers should avoid blanket no-hiring policies as much as possible, yet need not eliminate all use of criminal background checks in hiring.

* Jessica Lingo is an associate at Frost Brown Todd in Nashville and focuses her practice on labor & employment and business litigation matters. She is a native of Nashville, and graduated from Northwestern University School of Law in May 2012. Ms. Lingo may be reached at jlingo@fbtlaw.com or (615) 251-5562.

I hope everyone enjoys the latest newsletter from the TBA Labor and Employment Section.  I want to thank this issue's authors for their articles – Jessica Lingo, John LaBar (a frequent contributor) and Wes Sullenger (a return contributor). If you have an article, you may e-mail me at bbuchanan@visalaw.com or call me at 615-345-0266.

Bruce Buchanan

Read and comment about TBA Attorney Well Being Committee Member Mary Griffin's fight against cancer in her article Random Acts of Kindness, which first appeared in the May 2013 Tennessee Bar Journal.  

In the September 2013 issue of the National Jurist they discuss the 10 ways to Stay Happy While in Law School.  Check out the article and comment if you have other ways to stay happy while in law school!

Starting September 1, 2013, all immigrant visa applicants will apply online using Form DS-260 (Application for Immigrant Visa and Alien Registration). Applicants will also choose their agent online using Form DS-261 (Choice of Address and Agent). Applicants will access both forms on the web at ceac.state.gov.

These forms replace the paper DS-230 and DS-3032. The National Visa Center (NVC) may instruct some applicants who previously submitted Form DS-230 to submit Form DS-260. Only Diversity Visa and Cuban Family Reunification Parole applicants will continue to use the paper forms.

By Bruce E. Buchanan**

OCAHO is issuing a record number of decisions (on pace to triple their decisions concerning alleged I-9 form violations from 2012) and Immigration and Customs Enforcement (ICE) is conducting a record number of Notice of Inspections (NOI). Employers should know these enforcement activities will, at some point, impact their own I-9 compliance and recordkeeping.

More NOIs means more Notices of Intent to Fine (NIF) are issued. If employers opt to contest the NIFs, then the matter must be set for litigation. A little unknown fact though, is that ICE can realistically only afford to litigate a limited number of cases per year.  For employers, this opens up the opportunities to negotiate the penalty amounts with ICE though ICE would not readily admit to being amenable to negotiating fine amounts. With the severe reductions in penalties that OCAHO has provided employers recently, ICE may be at a disadvantage when it comes to negotiations. A recent example is a reduction of penalties by 80% in two Subway restaurant cases from $82,280 and $49,368 to $15,800 and $9,600, respectively.

How Does an Employer Seek a Reduction in Penalties?

First, a written request for a hearing within 30 days of service of the NIF must be lodged in order to preserve the employer’s rights to litigate, absent settlement. Without doing so, there is no incentive for ICE to consider an employer’s arguments in order to reduce the penalties.

Next, employers should considering conducting a thorough review of the NIF for any errors made by ICE in charging a violation was committed. (Remember, ICE officers are human and just as susceptible to making errors.) Examples of errors include failure to accurately count the three business days for the employer signing Section 2; determining a date was required in Section 3 when the employer only inadvertently signed Section 3 while signing and dating Section 2; and determining an employee did not provide his A# in Section 1 but failed to note it was provided in Section 2; thus, making it only a technical, not substantive error.

The Key to Reviewing the NIF

Finding errors can be doubly helpful.  It eliminates a number of violations and may lower the error percentage rate, triggering a lowering of the baseline fine amount. By way of illustration, if ICE found 80 substantive errors out of 200 Forms I-9, the error rate would be 40%. According to the Form I-9 fine matrix, the baseline penalty for a 40% error rate would be $770 per violation (for the first offense) for a total of fine of $61,600 (80 x $770).  Upon review, if an employer were able to successfully transform 20 of those errors from substantive to technical or eliminate them altogether, the new error rate would drop to 30%.  This drop in error rate would lower the baseline fine to $605 per violation for a new total of $36,300 (60 x $605).  The savings of $25,300 are significant!

A second method is to review the five mitigating/aggravating factors: size of business, good faith, seriousness of violations, whether any employees were unauthorized, and history of previous violations. Each is worth 5%.  Using these factors, employers can argue for a reduction of the penalties if ICE declined to mitigate the penalties or erroneously aggravated the penalties.

ICE’s Tactics for Aggravating Fines

Until recently, ICE aggravated every violation if it found any unauthorized employment of workers. However, after OCAHO repeatedly held this aggravating factor should only be used on the violation concerning the unauthorized worker, ICE has changed its method of calculation on this factor.

Concerning size, ICE may not be aware of how many employees are currently employed or the company’s revenues. Often, there may be hundreds of Forms I-9 presented but only a small number of employees currently employed at any time due to high turnover. Thus, it behooves employers to factor in their small size as a 5% mitigating factor whenever this is applicable.

ICE often argues bad faith based upon a poor rate of I-9 compliance and attempts to aggravate penalties by 5%. However, OCAHO has consistently rejected this argument. If faced with this strategy from ICE, employers should consider rebutting this argument by showing negligence, not bad faith.

Methods for Reducing Penalties

Other methods for reducing penalties include reviewing violations that occurred beyond the five-year statute of limitations; violations that are technical, not substantive, errors; instances where an employee is hired before November 7, 1986 and does not require a Form I-9; instances where an employee was hired but worked less than three days and the alleged violation concerned Section 2; and instances where the individual was not an employee.

OCAHO has found that an employer’s poor financial condition, ability to pay and the disproportionately large penalties are important factors in reducing penalties. Although these arguments are less persuasive with ICE, providing documents to support these defenses can be convincing before OCAHO.

Large reductions in penalties like in the recent Subway restaurants cases are uncommon, but employers shouldn’t be shy about seeking a reduction in penalties.  As a legal advocate, it is personally very rewarding to achieve a significant reduction in a client’s penalties.

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* This article was originally published on July 17, 2013 by LawLogix’s The I-9 and E-Verify Blog at http://www.lawlogix.com/blog/impact-ocaho-decisions-employers?utm_source=rss&utm_medium=rss&utm_campaign=the-impact-of-ocaho-decisions-on-employers.

**Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C.  He is a graduate of Vanderbilt University School of Law.  Mr. Buchanan writes a blog on employer immigration compliance located at http://blogs.ilw.com/immigrationcompliance/ and is a contributor toThe I-9 and E-Verify Blog (http://www.lawlogix.com/electronic-i9/). He may be reached at bbuchanan@visalaw.com or (615) 345-0266.

By Brittany Thomas*

Last year, immigration attorneys all over the country, including the author, waited in anticipation for the Provisional Unlawful Presence Waiver (“Provisional Waiver”) in hopes of common sense reform that would assist families to stay together, but the reform is not living up to all of the expectations.

Traditionally, a relative of an immigrant who entered without inspection filed an I-130 petition on his or her behalf and if approved, it went through NVC processing. Thereafter, the immigrant would leave the country for the immigrant visa interview at his or her home country consulate, be denied due to inadmissibility, and then file for waiver of the inadmissibility bar outside the U.S. With the traditional waiver, immigrants were left outside the U.S. in a sort of purgatory while waiting on a decision from United States Citizenship and Immigration Services (“USCIS”).

In January 2013, USCIS announced it would start accepting Provisional Waiver applications in March. This new Provisional Waiver process allows qualifying visa applicants, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver while remaining in the U.S. If approved, they would have a Provisional Waiver before they leave the U.S. for their immigrant visa interviews with the conditional assurance that they would be allowed to return. This differs from a traditional waiver, which can only be filed once an applicant has been found inadmissible abroad. The new process shortens the time U.S. citizens are separated from their family members while obtaining lawful status. To be eligible for the Provisional Waiver, the immigrant must be the spouse, parent, or minor child of a U.S. citizen and be admissible on all other grounds but for their unlawful presence in the U.S.

When USCIS announced the Provisional Waiver, undocumented immigrants in the U.S. with qualifying relationships immediately became hopeful. The Provisional Waiver is a common sense change to make things easier for U.S. citizens with undocumented relatives. In public informational calls, USCIS indicated that Provisional Waivers would be adjudicated similarly to traditional waivers; however, the adjudication process for Provisional Waivers had not gone as smoothly as advertised.

Waivers that appear to be good, if not model cases, are being denied all over the U.S. The culprit for these surprising denials is the current USCIS standard that requires its officers to deny the Provisional Waiver application if there is a “reason to believe” that an applicant may be inadmissible to the U.S. at the time of the immigrant visa interview, based on another ground of inadmissibility other than unlawful presence. USCIS has not given any further information of how a “reason to believe” standard is measured. Many seemingly eligible immigrants have had their applications denied with lightning speed because of this punitive and nebulous standard, despite the fact that they would not be disqualified under the published standards for the traditional waiver. Some of the reasons why applications are being denied are DUIs, juvenile offenses, presentation of false names, cumulative criminal history, and lack of documentary evidence. Under the “reason to believe” standard,all criminal history is presumed to be a material negative discretionary factor in the case. Any immigrant with a criminal history should proceed with caution when deciding whether to file for a Provisional Waiver.

USCIS officers are providing very little explanation for the denials. The officers are not issuing Requests for More Evidence to allow the immigrant to clarify a potential disqualifying factor. Officers are simply denying the Provisional Waiver applications. If a Provisional Waiver application is denied, there is no opportunity for an administrative appeal, a motion to reopen, or reconsideration of the decision. If denied, the only option is to file a completely new Provisional Waiver application. A new application is no more likely to be successful, unless there is a change in the applicant’s situation from the initial filing, or additional supporting evidence.

Unfortunately, the strict “reason to believe” standard is disheartening for immigrants who would be granted a waiver in their home country. The immigrants do not want to risk leaving the U.S., because they have been told there is a reason to believe they would be denied a traditional waiver application and they would not be allowed to return. USCIS also reserves the right to place any immigrant, whose Provisional Waiver application is denied, in removal (deportation) proceedings, which creates further apprehension against filing a Provision Waiver at all.

It is rumored that USCIS is currently in the process of reconsidering the “reason to believe” standard. Unfortunately, there is no way of knowing if there will be a revised standard or if a revised standard might be more sensible for immigrants and their families. Hopefully, a new standard will be closer to how waivers are reviewed abroad and will reduce the number of qualifying immigrants who are disheartened by a denial from USCIS.

Currently, attorneys face difficult decisions advising clients until a new standard is announced. Potentially life-changing choices must be made regarding applicants with any negative background or lacking substantial evidence.  For now, attorneys should consider waiting to see if USCIS revises the standard before filing any potentially unsound applications.

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*Brittany Thomas is an attorney at Grant, Konvalinka & Harrison, where she is a member of GKH’s immigration practice group, and represents businesses and individuals in the U.S. and around the world with regard to immigration, business and tax issues. Ms. Thomas is a 2012 graduate of University of Tennessee School of Law. She may be reached at 423-933-2731 or bthomas@gkhpc.com.

Hello.  I am Terry Olsen, Chair of the Immigration Section of the TBA.  This issue focuses on current immigration trends, and policies being faced by immigration lawyers in their daily practice.  In this issue, we provide you with relevant and practical articles that describe current immigration law developments.  

With that said, I would like to address immigration reform.  Immigration reform is a very pressing issue that has the potential to be revolutionary for immigration lawyers and those whom they serve.  Immigration reform is an evolving concept that has been a central legislative goal of the current administration.  With the ongoing international conflicts, changing international policy, and domestic budgetary and fiscal issues before Congress, it is unclear what will become of immigration reform.  If immigration reform legislation is enacted, possibly in October, we will issue a special issue covering the new laws and policies.

If you have any comments, suggestions, or would like to contribute in the future, please contact Bruce Buchannan our newsletter editor at BBuchanan@visalaw.com.

General Qualifications for Mentors:

• Mentors must be members of the Tennessee Bar Association;

• Mentors must have a minimum of eight years of legal practice experience;

• Mentors may not have had a formal BPR investigation pending or disciplinary action imposed in the last 10 years;

• Mentors may not have ever been disbarred;

• Mentors must carry professional liability insurance; and

• Mentors and their mentees may not work for the same employer.