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SHRMGP LLAC Legal Briefing

Posted By Cindy Hesch, Wednesday, January 31, 2018

by Tyree Boze, PHR, SHRM-CP

The SHRMGP Law and Legislative Action Committee had a legal briefing to kick off the year with three subject matter experts discussing current issues in immigration and labor law as well as a review of the AZ Earned Paid Sick Time.  Here are a few takeaways that were notable, but this is just a snippet of the content so hopefully it does the briefing justice!

Jill Bloom, Partner at Fragomen, was back to discuss the ever changing landscape of immigration.  She gave an overview of what happened in 2017 and what is on the horizon for 2018, making note that immigration law has not had a major overhaul since 1996 because no one can agree on how to effectively do it.  Jill painted a picture to show why change is necessary: She could file 10 cases, all being the same, but there will be 10 different results. 

If your company doesn’t employ foreign nationals, you may look at immigration as only a social or political concern.  However, US companies rely on foreign countries like India and China for STEM positions where there are no US candidates.  Thus, the concern in the business community has grown with the most recent rumors that certain programs like EAD (Employment Card Authorization) will disappear or extensions of stay for those trying to get their green card will be taken away.

Steven Wheeless, Partner at Steptoe & Johnson, LLP, provided an update on the NLRB.  Steven discussed numerous decisions that will be reversed due to the recent changes with the composition of the NLRB from Democratic majority to Republican.  One such example is a decision involving Boeing Company’s practice of not allowing phones in the work area due to confidentiality nature of the work performed.  The phone provision was determined unlawful so employees could take pictures and post unfair labor practices.  This decision and reversal provide clarity on lawfulness of work rules and interference of business interests with employee rights.

In regards to the NLRA, non-unionized companies need to recognize “concerted activity” so they do not violate the act.  Concerted activity can include two or more employees complaining about pay, discussing safety issues, and/or terms and conditions of employment.  Thus, Steven recommended not only basic training for your management teams about labor law so they know where the boundaries are, but leadership training on how to build a team and loyalty so employees simply don’t hate their supervisors. 

Courtney Hayden, from the Industrial Commission of Arizona’s Labor Department, spoke on Arizona’s earned paid sick time.  She reinforced the importance of the FAQs to interpretation of the Earned Paid Sick Time law as well as using resources like herself when there is uncertainty. 

There were a number of both HR professionals and lawyers that were surprised when Courtney clarified that employers should not be basing accruals for salaried/exempt employees on a 40 hour work week, but that employers that do not front load the earned sick time, should be tracking salaried/exempt employee hours for accrual purposes.

All employees’ must have ready and free access to their earned paid sick time balances on a regular payroll record which can include their paycheck or electronically through a portal.  Currently, investigations have been based on such payroll records. 

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