Author: Brett Holubeck

Immigration, the Midterm Elections, and DACA

Published by Brett Holubeck on November 8, 2018

Image of the US Capitol Building to show that Congress may decide the fate of DACA — Photo by Louis Velazquez on Unsplash

Immigrants are an important part of the workforce. “In 2017, there were 27.4 million foreign-born persons in the US labor force,” which is 17.1% of the total workforce. In the recent midterm election, according to the exit polls, immigration was the 2nd most important issue in the country with 23% of respondents believing that it was the most important issue in the country. This should come as no surprise given the number of different immigration issues that have happened during the Trump administration.

In recent weeks, two major immigration changes have occurred. On Monday, the Department of Justice petitioned the Supreme Court to determine whether President Trump can end the DACA program. The TN (NAFTA) visa survived unscathed in the new trade agreement between the US, Mexico and Canada. This visa had previously been on President Trump’s hit list.

The Supreme Court and DACA

DACA (the Deferred Action for Childhood Arrivals) protects certain people that were brought to the US as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. There are currently nearly 700,000 people that are in the DACA program. The program was slated to end before a judge ruled that the government must reinstate the program and accept applications again in August. Earlier today the Ninth Circuit ruled that the Trump Administration cannot end the DACA program immediately. They found that California and the others challenging the Trump administration’s decision to end the program would succeed in their case against the administration.

The sister program of DACA, DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents program) was ended by the Supreme Court in 2016 in a 4-4 decision. It would have allowed the parents of certain US citizens and permanent residents to continue to work and continue to live in the US. Unlike DACA, it was never put into effect. DACA’s fate at the Supreme Court will be determined by the 2 most recent Supreme Court Justices: Neil Gorsuch and Brett Kavanaugh.

It is unclear what will happen with DACA. Trump has expressed support for continuing the program but wants Congress to act. With the new Democratic Congress this may be something that both parties are willing to work on. If they cannot agree, then eventually Supreme Court will likely review the issue and over 700,000 people will be affected by the decision.

Trump and Immigration Visas

The TN visa was saved in the trade agreement between the US, Mexico, and Canada even though Trump and high-ranking senators opposed the visa. The visa allows certain professionals from Canada and Mexico to work in the US. The fact that the visa was not changed is a surprise because the current administration has been aggressive in attempting to reduce the number of visas through its Buy American and Hire American executive order.

This executive order calls for changing the H-1B visa, which is given to workers in specialty occupations that require theoretical or technical expertise. Most workers on this visa are in the tech industry or work with technology. Reforming the H-1B program has support on both sides of the aisle with Democratic Senator Dick Durbin, Sherrod Brown, and other Democrats supporting a change to the program. Some form of comprehensive immigration reform between the Democratically controlled House, the Republican Senate, and President Trump may address both the H-1B visa and the DACA program. It is an area where there seems to be some agreement on both sides of the political spectrum and the issue is important enough to be addressed.

Conclusion

Immigration issues are constantly changing in this administration and will continue to evolve. Both Democrats and Republicans have called for reforming certain visas and continuing the DACA program. The administration, the new Democratically controlled House, and the Republican Senate will eventually need to resolve DACA and may enact a comprehensive immigration reform that fixes DACA, certain visas, and perhaps the permanent residency process. DACA and other immigration problems are quickly coming to a head and require Congress to act to set some clear parameters around the issues. Surprisingly, there does seem to be some agreement between the Democrats and Republicans on the issue. The only question is whether they can work together to find a solution.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Talking Politics at Work (AKA How to Make Everyone Mad)

Published by Brett Holubeck on November 4, 2018

Picture of a finger with an "I voted" sticker on it. It aligns with the theme of politics at work because people will often wear I voted stickers. — Photo by Parker Johnson on Unsplash

It is election time. which is an interesting time to be working with people of all political persuasions.

Many workplaces have employee evangelists explaining how America as we know it is over if <insert their favorite politician here> is not elected. Others are saying that it may already be too late, and America is doomed.

Many people feel frustrated by this and fall into the “please stop talking about this at work” crowd. But does anyone HAVE to stop talking about it at work?

What Can Be Done About Employees Discussing Politics at Work?

Employees do not have free speech rights in the workplace. The first amendment only applies to the government and not to private employers. This means that companies can have policies in place that restrict employees from soliciting employees to vote for a particular candidate and can even discipline employees in some situations.

However, the National Labor Relations Act allows employees to work together to improve their wages and working conditions. What this means in practice is that an employee can discuss issues that may be related to improving their working conditions. Thus, employees have the right to ask fellow employees to support a candidate because they will raise the minimum wage, change some standards related to OSHA, or improve their workplace in some other way.

So, what can employers do when an employee wants to talk about politics at work. There are a number of things that you should consider.

Let’s look at some situations:

The Campaign Desk/Cubicle

What should you do if an employee has turned their desk into a campaign advertisement for a particular candidate? Again, your employee has the right to engage in concerted protected activity, which means that some banners may be permitted in the workplace. What you are allowed to do would primarily depend on your office’s policy. Certain types of objects may be protected under the law (like some religious objects), but generally political items would not fall into this category. Some may be protected if they are suggesting that an employee vote for a candidate because they will improve wages or working conditions. Regardless, posting political posters in an office is not something that an employee should do because it creates unneeded tension in the office.

The Office Canvasser

A non-solicitation policy will generally prohibit employees from soliciting employees during working time and in working areas. This means that an employee cannot go from desk to desk requesting that the employee vote for a particular candidate. If your company has a non-solicitation policy, then you are able to restrict employees from soliciting others while they are working. Employees can still solicit employees when they are on break, during lunch, or before or after work. Nevertheless, a non-solicitation policy is something that all companies should have.

The After Work Social Media Poster

A company may be able to fire or discipline an employee if they post on social media about their political activities. Don’t forget about the woman that was fired for flipping off Trump’s motorcade. She was fired for having obscene things on her social media, which was against company policy. It did not help that she worked for a federal contractor. While companies can generally fire employees for any reason, as long as it is not an unlawful reason, almost every company will not fire employees for political postings on social media. If they did, then a lot of people would lose their jobs each election year.

Employers Can Ask Employees to Support a Particular Candidate

Generally, a company can encourage their employees to vote in a certain way. In 2012, one CEO emailed the 7,000 employees in his company to tell them that if Obama was elected he would probably have to let people go because of Obama’s tax proposals. He stated that rather than raising taxes, the government should lower the tax rate, which would “let me spend it on growing the company, hire more employees, and generate substantial economic growth.” Companies can and do encourage their employees to vote a certain way, which is not likely to stop as our two major political parties continue to grow more polarized each year.

Can an Employer Fire Someone Because They Support a Particular Candidate?

There are some states that prohibit employers from discriminating against an employee’s political beliefs, but not all of them do. Some states also offer protection to employees who engage in legal off-duty conduct. While this usually means that employees cannot be fired for smoking or drinking alcohol, it may also apply to supporting a particular candidate, going to campaign rallies, and engaging in other activities.

Even though many states do not offer any kind of protection to employees, most employers do not want to fire an employee unless there is a good reason to do so. Remember, hiring is expensive and time consuming. Employers do not want to do it more than they have to.

Conclusion

Fortunately for all of us, there are only a few days left until the election is behind us, which will allow all of us to remember what commercials used to play before we were inundated with political campaign ads: fast food and auto insurance commercials.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Should Halloween Give Employers Nightmares?

Published by Brett Holubeck on October 26, 2018

Picture of a lighted jack-o'-lantern to show that Halloween is scary. — Photo by NeONBRAND on Unsplash

It is that time of the year again. The time when some companies will have Halloween celebrations that involve employees dressing up in costumes or engaging in office antics. Halloween is one of the most dangerous times for employers because of the possibility of various forms of liability that they may face. The celebrations can cause issues related to religious discrimination, racial discrimination, sexual harassment, and other office problems.

Halloween May Contribute to Religious Discrimination

Halloween is one of the most interesting holidays for religious discrimination claims. Some groups may view Halloween as involving demons and claim that they cannot participate in any Halloween parties because they are Christian. On the other hand, Wiccans (of which there are approximately more than 700,000 in the US) may feel that any office celebration is a way to make fun of their religious beliefs.

Some Christians may Refuse to Participate

Some, not all Christians, may view Halloween as a demonic activity that is completely against their beliefs. If the employee is a Jehovah’s Witness or some other religion that does not celebrate Halloween, then you should not force an employee to participate. Forcing an employee to participate could cause a religious discrimination case. While Title VII, the law protecting employees from discrimination, only applies to companies with 15 or more employees, many state laws have a lower employee threshold. However, even if a company’s employees are not protected under the act, does any company really want to be known for engaging in religious discrimination?

Wiccans may View Some Office Banter as Discrimination Against Them Based on Their Religion

Some groups may view the holiday as an important day for their religion and request the day off. If an employee is Wiccan, then you should allow them to have October 31 off. You also need to be careful and sensitive to how other employees treat Wiccans around Halloween. It is important to be sensitive to the needs of these employees. If anyone makes fun of an employee for their beliefs, then you need to react and protect those employees. Many people are not familiar with the Wiccan religion, which can cause other employees to make fun of them. It does not help that Wiccans use the pentagram/pentacle as a holy symbol and the inverted pentagram/pentacle is associated with Satan by Christians. The similarity between the two makes it easy for Christians and others to feel attacked because they misunderstand the beliefs of the Wiccans. It is imperative to act quickly to defuse a situation regarding this or other misunderstood Wiccan beliefs. There is at least one instance where this has caused a lawsuit against a company.

Halloween, Racial Discrimination, and Megyn Kelly

Many people are not aware of what is and what is not appropriate to wear during Halloween. Take Megyn Kelly’s comments about blackface. Here is what Megyn Kelly said:

But what is racist? You truly do get in trouble if you are a white person who puts on blackface at Halloween or a black person who puts on whiteface for Halloween. That was OK when I was a kid, as long as you were dressing like a character.

Don’t listen to Megyn Kelly. It’s not ok. No employee should use blackface for their costume or otherwise purposefully dress themselves up to look like another race for a Halloween party.

There is one case (Nichols v. Grand Trunk W. R.R., 1999 BL 5415 (Mich. Ct. App. Dec. 21, 1999)) that used employees dressing up in blackface and chains to support the plaintiffs’ claims of racial discrimination. The plaintiffs were ultimately not successful because their claim had passed the statute of limitations (it was too late for them to sue). However, both the case and the incident involving Megyn Kelly clearly demonstrate the danger of allowing employees to dress with blackface to look like a member of another race for Halloween. They could seriously offend someone and subject them to an environment where they would experience racial discrimination.

What to Do If Your Office Has A Halloween Party

Can you still have an office Halloween party if someone could be offended and sue? Yes, you can have a party, but you should take certain steps to minimize the risks of a lawsuit or offending employees

If the company allows employees to dress up, then you should prohibit employees from wearing anything that has naughty or slutty in the title. No one needs to come dressed to work in anything inappropriate. Participation in dressing up or the party should always be voluntary. The normal workplace dress code that employees are expected to dress professionally and avoid anything that can be deemed offensive should still apply. In today’s current environment, I would also prohibit employees from bringing plastic guns or other items that could appear threatening to an employee. Employees should also be prohibited from dressing as anything political as this will cause office problems. Halloween and any holiday should be a time for employees to have some fun at work. It should not be a time for additional issues.

Some employees will always view a party as a way to test the boundaries of what is permissible. They may make inappropriate jokes to employees. Supervisors and managers must be aware of any instances where an employee makes any statements that could be considered to be sexual harassment and take immediate corrective action.

When given a chance to have some light fun, some employees will abuse the opportunity. If an employee is caught playing a trick on another employee or otherwise engaging in inappropriate workplace behavior, then you need to discipline the employee.

Conclusion

Halloween can be a great time for employees to relax and prepare for the upcoming holiday season. Employees still need to be aware that the normal rules apply to the workplace and they cannot engage in behavior that would be sexual harassment, racial discrimination, or religious discrimination during the holiday.

The information provided is my own and does not reflect the opinion of my firm or anyone else.