Minnesota Client Alert
Legal News for Minnesota Employers
January
2017
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It is likely pure coincidence that the EEOC issued its position on national origin discrimination within days of the November elections. The guidelines went into effect on November 21, 2016, modifying the EEOC's previous position on national origin discrimination, issued 15 years ago. The current guidelines are consistent with the EEOC's Strategic Enforcement Plan (SEP) for 2017-2021, which identifies the rights of immigrants as a top priority for the agency.
Given the political controversy over issues of immigration, religion and countries of origin, these guidelines will generate plenty of attention in 2017 and the years ahead. Although administrative guidelines lack the legal authority of regulations, they do serve as a reference for federal courts and provide employers with insight into the thinking of the agency. For example, the EEOC reports that nearly 40 percent of all national origin claims filed with the EEOC in 2015 included allegations of workplace harassment on that basis. To avoid unwanted attention from this federal watchdog, employers will want to familiarize themselves with the EEOC's newly articulated position as they consider national origin in the workplace.
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Audits on the Rise: Take Steps Now to Ensure I-9 Compliance! 
With the recent release of a new Form I-9 and an incoming presidential administration focused on deterring illegal immigration, employers should prioritize Form I-9 compliance. A lesson can be learned from the fate of a Minnesota-based company that was recently audited and fined a substantial sum for Form I-9 violations. Although the fines were ultimately reduced by an Administrative Law Judge, the Department of Homeland Security ("DHS") initially fined International Paper $88,825 for failing to correctly prepare Forms I-9 for some of its employees.
DHS audits, like the one that resulted in International Paper's fines, are expected to become a focal point with the new presidential administration. Through audits, DHS uses an employer's completion of Form I-9 to discover unauthorized workers and deter illegal immigration. The penalty fines for Form I-9 paperwork offenses drastically increased in 2016, sometimes by nearly 100 percent. Each mistake on a Form I-9 counts as a separate violation. Violations now range from $216 to $2,156 per violation, meaning even midsize employers could easily reach $50,000 in fines.
To avoid an audit disaster and large fines, employers should develop a comprehensive I-9 compliance program and add an internal audit to their 2017 To-Do List.
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Thousands of employers affected by the US Department of Labor's Minimum Salary Rule for Overtime Pay Exemptions have anxiously awaited the outcome of litigation that blocks the rule from going into effect as intended, on December 1, 2016.
A Federal District court in Sherman, Texas ruled just before Thanksgiving that the DOL exceed its authority in issuing the rule. However, the DOL promptly appealed that decision to the U.S. Court of Appeals for the Fifth Circuit in New Orleans. The Appellate Court granted the DOL's motion for expedited proceedings and, on December 15th, the DOL filed its brief arguing that the lower court's decision was flawed. Among other things, the DOL argued that when Congress enacted the Fair Labor Standards Act (FLSA) in 1938, and since then, the DOL was authorized to set minimum salary levels for professional, executive and administrative positions exempt from the FLSA's overtime requirements.
The appellees - 21 states and business organizations - now have until mid-January to file briefs with the appellate court and then the DOL's final reply is due the end of that month. Presumably, the Fifth Circuit Court will then schedule oral arguments in February and a decision could come as early as the end of February, but more likely in March 2017 or later.
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Four Changes for Business Immigration in 2017
As the new presidential administration takes shape, employers should prepare for significant changes in the area of corporate immigration. Although illegal immigration was the focus of campaign rhetoric, the new administration seems poised to concentrate on employment-based immigration. Employers are advised to take action prior to January 20, 2017
to ensure a seamless transition for current and future foreign employees.
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Our Annual Firm-Wide Seminar is Fast Approaching
Each year, Wessels Sherman hosts a full-day seminar where attorneys from our offices in Chicago and St. Charles, Illinois; Minneapolis, Minnesota; Milwaukee, Wisconsin; and Davenport, Iowa, come together in one of our locations, to present on many of the most important workplace issues faced by employers around the country.
In 2017, the location will be here, in Minneapolis. Mark your calendars now to attend this one-of-a-kind event to hear
from our highly experienced attorneys
- and guest speakers - from across the Midwest, on cutting edge HR, labor and employment topics
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Last Chance for EARLY BIRD PRICING
Here are the basics:
WHEN:
Friday, April 28th
, 2017
WHERE: Radisson Blu, Mall of America
WHAT: Lots of valuable information presented in a fun/lively fashion!
WHY: Because it's valuable information, presented in a fun/lively fashion, at a very reasonable cost!
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Piggybacking on the U.S. Supreme Court's landmark
Hobby Lobby decision, a Minnesota couple has filed a federal lawsuit challenging Minnesota's Human Rights Act. Carl and Angel Larsen own Telescope Media Group, a video production company that provides media services for weddings. The Larsens claim that the Human Rights Act's provisions would force them to violate their religious beliefs, which include refusing same-sex couples as clients. They argue that their right to freedom of expression is being "chilled and silenced" by the law.
Minnesota's Human Rights Act prohibits discrimination based on race, national origin, color, sex, sexual orientation, or disability. Under the Act, it is illegal for businesses to intentionally refuse to conduct business because of an individual's sexual orientation. Misdemeanor violations are punishable by fines of up to $1,000 and / or 90 days in jail.
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Consult with experienced labor & employment lawyers whenever you need advice, without worrying about legal fees!
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For more information about Wessels Sherman's unique Phone Consultation Program, check our web page by clicking on the below link; or contact Jeff Kier at (952) 746-1700, or email him
here.
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Did You Know?
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Wessels Sherman has well-staffed offices with experienced attorneys to assist with our readers' legal needs in Wisconsin, Illinois and Iowa too. Businesses with operations/matters in these states are encouraged to call any of our attorneys for assistance. Additionally, Wessels Sherman attorneys regularly work with other lawyers as a highly cost-effective and trusted co-counsel and local counsel. Referrals are always appreciated and respected.
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