Employment Law This Week®: Antitrust Guidance for HR, EEOC Strategic Enforcement Plan, New I-9 Form, Wage Statement Challenge

(1) DOJ and FTC Release Antitrust Guidance for Human Resource Professionals

Our top story: The DOJ intends to investigate anti-competitive trade practices.  The Department of Justice and the Federal Trade Commission released joint guidance for HR professionals on how antitrust laws apply to employment. The guidance explains that agreements among employers not to recruit certain employees—or not to compete on terms of compensation—are illegal. Notably, the DOJ announced that they plan to criminally investigate “naked no-poaching or wage fixing agreements” that are unrelated to legitimate collaboration between businesses. In the past, both agencies have pursued civil enforcement. Here’s Peter Altieri, from Epstein Becker Green, with more on the announcement.

"Employment antitrust issues typically arise when two companies enter an agreement together. That agreement could be as to wages of employees, hiring of employees, employee benefits. … That doesn't mean that you can't agree not to hire each other’s employees when it’s ancillary to a legitimate agreement such as an M&A transaction, a nondisclosure agreement, or when settling a lawsuit. … Criminal investigations by the DOJ means that the stakes are much higher. It ups the ante for the individual executives because they could be facing criminal prosecution, and jail time, as opposed to just civil fines against the company or individually." Click here for more on this story: http://bit.ly/2efTMYH

(2) EEOC Approves Updated Strategic Enforcement Plan

The EEOC recently approved its updated five-year Strategic Enforcement Plan. The update identifies priorities like equal pay protection and preserving access to the legal system, and places special emphasis on enforcement in two emerging areas. The first is complex employment relationships in the 21st century workplace, such as independent contractor relationships and the on-demand economy. The second is backlash discrimination against Muslims, Sikhs, and those of Arab, Middle Eastern, or South Asian descent. Charges that implicate an area of emphasis will draw extra scrutiny and are more likely to be thoroughly investigated.

(3) New I-9 Form to Be Released

A new I-9 form is on the way.  The Department of Homeland Security is expected to release a new version of the Form I-9 by November 22. After January 21, 2017, previous versions of the form will be invalid. The new I-9 includes some structural changes and a “Smart” PDF version with features to help employers avoid fines. For example, the form will flag inconsistencies in the information entered by employees about their citizenship or immigration status. DHS and the Department of Justice significantly increased the penalties for I-9 violations, effective August of this year.

(4) California Appeals Court Rejects Wage Statement Challenge

California Appeals Court rejects a wage statement challenge. California requires employers to provide itemized statements of wages to employees when they are paid. In this case of first impression, a former Motel 6 employee alleged that the chain violated the state’s Labor Code by not including accrued vacation time and paid time off in their statements. Upholding a lower court, the appeals court ruled that, like retirement benefits, unused vacation time does not become a quantifiable wage until the employment ends.

(5) Tip of the Week

Rounding out our month-long series honoring diversity in the workplace is Dr. Barbara Warren from the Mount Sinai Heath System. She serves as Director of LGBT Programs and Policies, in the Office of Diversity and Inclusion. Barbara shares some strategies for creating an inclusive environment for transgender employees.

"One of the things we are doing is extensive training and education for all of our employees across our workforce. That begins from employee orientation, through workforce development, and beyond. ... Another simple thing that every employer can do is to create signage that can go on front desks, or can go on workstations, greeting both employees and patients or customers, that simply says that we respect everyone's gender identity and please share with us the name and pronoun you would like us to use. In addition to that, we have been discouraging the use of honorifics in our system. So, instead of saying Ms. or Mr. and potentially making a mistake, when greeting a person, just ask them their names and ask them what pronoun they would like you to use. And finally, if you make a mistake, we encourage all of our employees to just simply apologize in a respectful way, and to ask whoever you're speaking with the name and pronoun they would prefer you to use."