December 2011

Alert:  SC Illegal Immigration & Reform Act Affects All Employers
Are You Ready for the January 1, 2012 Changes?

Changes to the South Carolina Illegal Immigration and Reform Act (SCIIRA) take effect on January 1, 2012.  Under the amended law, signed June 27, 2011, all private employers regardless of size in the state are required to enroll in E-Verify and use that system to confirm the status of all newly hired employees.  The amendment also includes significant revisions to the penalties for non-compliance including increased reporting obligations, paying for the costs of the investigation, probation, suspension or even revocation of employment, business licenses and authority to conduct business in the state.  For this reason, South Carolina employers should take action immediately to ensure compliance with the law.

E-Verify and the I-9 Form
E-Verify, an internet-based system located on the Department of Homeland Security’s (DHS) website, compares the information an employee provides on the Form I-9 with information from government records.  If the information matches, the employee is eligible to work in the United States.  If it does not match, E-Verify will alert the employer, and the employee should be allowed to continue to work while he or she attempts to resolve the problem.  Employers must verify work authorization within three business days of the new employee’s start date.

Employment and Other Licenses
Under the new law, all private employers in South Carolina are imputed a SC employment license which permits a private employer to employ a person in the state.  A private employer may not employ a person unless the private employer’s SC employment license, and any other applicable licenses as defined in Section 41-8-10 of the law, are in affect and are not suspended or revoked.  Other applicable license as defined includes articles of incorporation, certificate of partnership and similar forms of authorizations issued by the South Carolina Secretary of State.

Actions to Take to Ensure Compliance

Failure to Comply with the Act
If an employer fails to verify a new hire through E-Verify within three business days before July 1, 2012, the employer must affirm in writing that the employer has been in compliance with federal immigration law since January 1, 2012.  The employer must then comply with the E-Verify requirements within 3 business days.  A subsequent violation within three years will result in the suspension of the private employer’s licenses for at least 10 days, but not more than 30 days.

After July 1, 2012, a first failure to verify a new hire through E-Verify within three business days will place the employer on probation for a period of one year with additional quarterly reporting requirements.  A subsequent violation within three years will result in the suspension of the private employer’s licenses (including those issued by the Secretary of State as referred to above) for at least 10 days, but not more than 30 days.

If an employer knowingly or intentionally employs an unauthorized alien, the employer will have its licenses suspended for at least 10 days, but not more than 30 days.  The employer’s licenses will be reinstated when the employer terminates the unauthorized alien and pays reinstatement fees equal to the costs of investigation and enforcement up to $1000.  If there is a second occurrence, the employer’s licenses will be suspended for at least 30 days, but not more than 60 days.  A third violation results in the employer’s licenses being revoked.  During periods of suspension, the employer may not engage in business, employ an employee, or operate in any fashion.

South Carolina Department of Labor, Licensing and Regulation (LLR) is charged with enforcing these state requirements.

-top-

Employee Rights Under NRLB Notice Posting Required on January 31, 2012

As of January 31, 2012, most private sector employers are required to post a notice advising employees of their rights under the National Labor Relations Act.  The notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. Employers also should publish a link to the notice on an internal or external website if other personnel policies or workplace notices are posted there. 

All employers that fall under the Board's jurisdiction, other than the U.S. Postal Service, must post the notice of employee rights. The Board has statutory jurisdiction over private sector employers whose activity in interstate commerce exceeds a minimal level. Over the years, it has established standards for asserting jurisdiction, which are described below. As a practical matter, the Board’s jurisdiction is very broad and covers the great majority of non-government employers with a workplace in the United States, including non-profits, employee-owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws.

Frequently Asked Questions regarding the Requirements can be found on the NLRB Website.     A workplace Poster that describes employee rights under the National Labor Relations Act is now available for free download from the NLRB website.

Retailers
Employers in retail businesses fall under the Board’s jurisdiction if they have a gross annual volume of business of $500,000 or more. This includes employers in the amusement industry, apartment houses and condominiums, cemeteries, casinos, home construction, hotels and motels, restaurants and private clubs, and taxi services. Shopping centers and office buildings have a lower threshold of $100,000 per year.

Non-retailers
For non-retailers, jurisdiction is based on the amount of goods sold or services provided by the employer out of state (“outflow”) or purchased by the employer from out of state (“inflow”). Outflow or inflow can be direct or ‘indirect’, passing through a third company such as a supplier. The Board takes jurisdiction when annual inflow or outflow is at least $50,000.

Special Categories
Channels of interstate commerce:  For businesses providing essential links in the transportation of goods or passengers, including trucking and shipping companies, private bus companies, warehouses and packing houses, the minimum is $50,000 in gross annual volume.
Health care and child care institutions: Hospitals, medical and dental offices, social services organizations, child care centers and residential care centers with a gross annual volume of at least $250,000 are under NLRB jurisdiction; for nursing homes and visiting nurses associations, the minimum is $100,000.
Law firms and legal service organizations: The minimum is $250,000 in gross annual volume.
Cultural and educational centers: For private and non-profit colleges, universities, and other schools, art museums and symphony orchestras, the annual minimum is $1 million.
Federal contractors: Federal contractors are required by the Department of Labor to post a similar Notice of Employee Rights under the NLRA. There is no need to post an additional poster; the DOL poster will satisfy the NLRB’s requirement.
Religious organizations: The Board will not assert jurisdiction over employees of a religious organization who are involved in effectuating the religious purpose of the organization, such as teachers in church-operated schools. The Board has asserted jurisdiction over employees who work in the operations of a religious organization that did not have a religious character, such as a health care institution.  
Indian tribes:  The Board asserts jurisdiction over the commercial enterprises owned and operated by Indian tribes, even if they are located on a tribal reservation.  But the Board does not assert jurisdiction over tribal enterprises that carry out traditional tribal or governmental functions.

The following employers are excluded from NLRB jurisdiction by statute or regulation:

-top-

NLRB Rules on Employee Communications via Social Media

Over the course of the last year, the National Labor Relations Board (NLRB) has taken an active role in shaping the legal framework of social media use by employees. On Sept. 2, 2011, an NLRB administrative law judge ruled that a nonprofit organization violated federal law when it fired five employees for messages posted on Facebook. This groundbreaking decision, together with the NLRB’s recently issued report on social media cases, provide important guidance to employers regarding workplace social media policies.

Section 7 of the National Labor Relations Act (NLRA) permits employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Regardless whether the employer is unionized, employees must be free to discuss the terms and conditions of employment without fear of reprisal. Recent actions by the NLRB make it unmistakably clear that the NLRB shows no signs of retreating from its strong stance that Section 7 rights carry at least equal weight in the context of social media as compared to more traditional forums.

Hispanics United of Buffalo Inc. (HUB) is a 30-employee nonprofit corporation that renders social services to economically disadvantaged people in Buffalo, N.Y. HUB terminated five employees after they engaged in a group Facebook discussion about a co-worker’s criticism of their work performance. The co-worker saw the Facebook posts written about her and complained to her manager. HUB viewed the Facebook posts as a form of co-worker bullying and harassment and terminated the employees on that basis.

Thereafter, one of the terminated employees filed an unfair labor practice charge with the NLRB, claiming that his Facebook posts qualified as protected concerted activity and could not be used as the basis for termination. In response, HUB argued that the employees were not engaged in protected concerted activity because they were merely griping that another employee had criticized their work performance. According to HUB, the employees were not trying to change their working conditions and did not communicate their concerns to management.

Following a three-day trial, the judge rejected HUB’s argument, concluding that “If employees have a protected right to discuss wages and other terms and conditions of employment, an employer violates [the NLRA] in disciplining or terminating employees for exercising this right—regardless of whether there is evidence that such discussions are engaged in with the object of initiating or inducing group action.”

Based on its conclusion that the Facebook postings qualified as protected concerted activity, the judge ordered HUB to reinstate the five terminated employees with back pay. In addition, the judge ordered HUB to post a workplace notice stating, in part, “We violated Federal labor law and [the NLRB] has ordered us to post and obey this notice. WE WILL NOT discharge or otherwise discriminate against you for engaging in protected concerted activity, including discussing amongst yourselves your wages, hours and other terms and conditions of your employment, including criticisms by coworkers of your work performance.”

HUB has indicated it intends to appeal the decision.

Not All Social Media Use Is Protected
Although the HUB decision is broad, a recent report from the NLRB demonstrates that Section 7 of the NLRA does not extend to all social media use. On Aug. 18, 2011, the acting general counsel of the NLRB issued a report summarizing 14 social media cases decided by the NLRB during the last year. While the report does not establish bright-line rules, the following general themes emerge:

*Two-Pronged Analysis: Section 7 protects employees’ right to engage in “protected concerted activity.” The cases summarized in the NLRB’s report suggest that an employee’s social media use is protected if the employee’s comments: (i) relate to the terms and conditions of employment; and (ii) can reasonably be interpreted as acting with, or on behalf of, other employees. The NLRA does not protect personal gripes and/or comments that have no real connection to work conditions.

*Related to Terms and Conditions of Employment: Examples of social media cases where the NLRB concluded the comments were sufficiently related to the terms and conditions of employment involved topics of job performance, workload, supervisors, and staffing levels. In contrast, employee comments about the employer’s customers or third parties were not entitled to protection under the NLRA.

*Concerted Activity: To be concerted, social media use must be directed to or involve co-workers and invite or induce them to engage in further action. In several cases, the NLRB concluded that, although the employee’s social media posts were read by fellow co-workers and elicited responses by some, the complaints did not constitute “concerted activity” because they were individual gripes and not aimed to induce group action. For example, in one case, an employer disciplined an employee for profane Facebook comments that were critical of management, and several co-workers posted supportive responses. The NLRB concluded the employee’s Facebook postings were not concerted activity because “they contained no language suggesting that the employee sought to initiate or induce co-workers to engage in group action; rather they expressed only his frustration regarding his individual dispute with the [manager] . . . . Moreover, none of the co-workers’ Facebook responses indicated that they had otherwise interpreted the employee’s postings. They merely . . . offered emotional support.”

Overly Broad Social Media Policies Are Unlawful
 In several cases, the NLRB found social media policies overbroad and unlawful because the policies “chilled” or discouraged protected concerted activity. According to the NLRB, the mere existence of an overly broad social media policy exposes the employer to an unfair labor practice charge even if no disciplinary action is taken against an employee.

Given the significant cost and distraction of defending an unfair labor practice charge, any employer seeking to regulate employee social media use should give careful consideration to the NLRB’s reasons for declaring certain social media policies unlawful. HR Experts On Demand can assist you in this review.

The NLRB’s Increasing Presence in the Workplace
The NLRB has not signaled any intention to depart from its active involvement in social media-related employment issues. If anything, the NLRB’s presence may increase as a result of a new rule that goes into effect on Nov. 14, 2011, requiring employers to post a notice informing employees of their rights under the NLRA.
 
Given the NLRB’s stance in applying the NLRA to social media policies and the rapidly evolving law on this topic, employers should exercise caution in implementing such policies and before imposing social media related disciplinary action.

-top-

DISCLAIMER: Any information, recommendations, advice and opinions provided are based on general human resource management fundamentals, practices and principles, and are not legal opinions or guaranteed outcomes.  We recommend, as part of a team approach to management, that you consider consulting with your legal counsel to address any legal concerns related to significant human resources issues and binding contracts.

This email is sent in compliance with federal regulations, which require unsolicited commercial email messages to include opt-out instructions, a legitimate return email address, and the physical postal address of the sender. It prohibits falsifying the source, destination, headers or routing information. If you would like to change your email address, please let us know by replying to this email. Please include your address change in the body of the email. HR Experts On Demand, 2131 Woodruff Road, Suite 2100, Greenville, SC 29607.

Copyright © 2011  HR Experts On Demand^SM All Rights Reserved.