Dorsey Work Watch

On March 18, 2022, the U.S. House of Representatives passed the Creating a Respectful and Open World for Natural Hair (CROWN) Act by way of a party line vote of 235-189. In general, the federal CROWN Act and similar state acts explicitly prohibit discrimination on the basis of a person’s natural hair.  More specifically, the proposed federal legislation prohibits “discrimination based on a person’s hair texture or hairstyle if that style or texture is commonly associated with a particular race or national origin” and seeks to ban race-based hair discrimination in the workplace, federal programs, and public accommodations.  The U.S. Senate has not yet voted on the Act. If enacted into law, the federal law would be treated as incorporated into Title VII of the Civil Rights Act of 1964 which, among other things, already bans discrimination on the basis of race and national origin. While the fate of the bill at the Senate is unknown, several states have already passed similar CROWN Acts and several others have introduced CROWN Acts in the hopes of making it law. Given the national attention the CROWN Act has received, employers are smart to ask which states already have these laws in effect and what they need to know about these laws so they can prepare. Do any states have their own CROWN Acts? Yes.  California was the first state to pass a CROWN Act in 2019 and, as of the date of this post, 16 states have passed similar legislation.  To date, the following states have passed similar state or territory-level hair discrimination laws: California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Virginia, Washington, and the U.S. Virgin Islands. Localities in various states including Arizona, Colorado, Florida, Georgia, Kentucky, Louisiana, Maryland, Michigan, Missouri, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Texas, Washington, West Virginia, and Wisconsin have also instituted ordinances or other directives prohibiting hairstyle and texture-based discrimination. State hair discrimination laws are similar to the federal law, but consulting an experienced labor and employment attorney as to your state’s CROWN Act is recommended. Why are CROWN Acts passed? Proponents of these laws view the legislation as way to address systemic racism and to prohibit the removal from—or denial of—employment due to an individual’s natural hairstyle.  For a long time, courts declined to recognize that discrimination on the basis of someone’s appearance could be discrimination on the basis of that person’s race or national origin.  Advocates of CROWN Acts say this historical lack of protection from hair discrimination is largely due to a lack of understanding about how a person’s hair choices are connected to their race or national origin.  The hair discrimination laws being introduced and passed are an attempt to address this issue. What do courts have to say about the issue? This issue played out between disagreeing appellate judges in EEOC v. Catastrophe Mgmt. Sols., 876 F.3d 1273, 1274 (11th Cir. 2017).  In that case, an employer refused to hire any applicant who had an “excessive hairstyle” and ultimately relied upon that policy in declining to hire a Black woman who wore her hair in dreadlocks.  The Eleventh Circuit held that “dreadlocks are not, according to the EEOC’s proposed amended complaint, an immutable characteristic of black individuals.”  The majority’s rationale was that a person does not have to wear their hair in dreadlocks, therefore dreadlocks are not immutable and not protected under Title VII.   The EEOC argued that “dreadlocks are protected under Title VII because they are culturally and physiologically associated with individuals of African descent,” the exact sentiment underlying CROWN Acts. One judge wrote a scathing dissent, stating: The discriminatory animus that motivates an employer to ban dreadlocks offends the antidiscrimination principle embodied in Title VII just as much as the discriminatory animus motivating a ban on Afros. Both are distinctly African-American racial traits. . . . In other words, when an aspect of a person’s appearance marks her as a member of a protected class and her employer then cites that racial marker as the reason for taking action against her, the employee’s race probably had something to do with it. Whether that racialized aspect of her appearance is ‘immutable’ such as skin color or ‘mutable’ such as hair is beside the point. Either way, the employer’s action based on a racial identifier is an action based on the employee's race. Legal disputes asserting claims of hair-based discrimination continue to be filed, including a lawsuit filed by a Black man who applied for re-employment following furlough. The plaintiff’s lawsuit asserts that he was told by the hiring manager that he would have to conform his appearance to company policy, which meant that he would need to cut his locs. See Thornton v. Encore Group USA LLC, No. 37-2021-00049996 (Cal. Super. Nov. 29, 2021) This and other disputes centering around alleged hairstyle or texture discrimination appear to be here to stay, particularly with the increasing number of state laws providing an avenue for workers to seek redress. What does the CROWN Act momentum mean for employers? Hair discrimination laws seek to expand the scope of characteristics that may give rise to actionable claims of discrimination, including in the workplace.  Given the current momentum behind this movement and legislative trends, employers operating in states or localities with hair discrimination laws should be mindful of these new protections for workers.  Employers should also consider revisiting dress and/or grooming policies to ensure that they do not prohibit employees from wearing particular hairstyles commonly connected to racial, ethnic, and religious identity.  Additional training for management personnel and those with interviewing or hiring responsibilities—including implicit bias training—may also be beneficial to ensure that hiring decisions are based upon proper grounds, and do not implicate potential hair-based discrimination. If you are an employer in one of these states seeking guidance on your state’s new CROWN Act, or if you are an employer seeking guidance on how you can guard against hair discrimination in the workplace regardless of your state’s laws, you should contact an experienced labor and employment attorney.

Raise your hand if you are a human resources professional who has had it up to the proverbial HERE with sifting through state law requirements for remote workers? This post is for you! Today we are taking a closer look at Colorado’s Equal Pay for Equal Work Act and how its pay transparency provisions apply to multi-state employers. Here’s the scenario: My company is based in Minnesota (or some other state that isn’t Colorado). We are posting a position online (e.g. Indeed, LinkedIn). The position will be 100% remote and we will accept applicants from all 50 states, including Colorado. Does my posting have to comply with Colorado law? The answer depends on a couple of factors. First, does the company currently have at least one employee in Colorado? If yes, then the company is a covered employer as defined by the Act. If the company does not have any employees in Colorado, the company is not covered by the statute. Next ask, could the position potentially be filled by a Colorado resident? Employers should take a broad read of this question. In other words, unless it is an absolute certainty that the company will not hire a Colorado resident, the answer to this second question is probably “yes.” Did you answer “yes” to both of these questions? If so, then your company is a covered employer and any job posting accessible by Colorado residents that could potentially be filled by a Colorado resident must comply with the Act. So what is a compliant posting? Job postings must include: (1) the rate of compensation (e.g. salary or hourly rate), but a range of the lowest to the highest pay the company actually believes it might pay is acceptable; (2) a general description of bonuses, commissions, or other compensation, if any; and (3) a general description of all benefits offered with the position (e.g. health insurance, retirement plan, paid time off). Regarding the third point, the description of benefits may be general, but must be complete. What does that mean? Employers cannot use terms like “etc.” or “and more.” “All benefits” means all benefits. But wait, we aren’t done yet! What about the Act’s provisions requiring covered employers to post promotional opportunities to existing employees? If the company is a covered employer, then the company is required to notify its Colorado employee(s) of all promotional opportunities, including for positions to be performed outside Colorado. However, notices of promotional opportunities for jobs to be performed entirely outside Colorado need not include compensation and benefits information. Likewise, multi-state employers are not required to notify their non-Colorado employees of promotional opportunities in Colorado (or elsewhere, unless required by state law). Bottom line: If an employer has even one employee in Colorado, and is posting a new position or promotional opportunity that can be performed from anywhere (including Colorado), the posting needs to include the requisite compensation and benefits information. As a parting note, keep in mind there are other states and localities that require some form of pay transparency including California, Connecticut, Maryland, Nevada, New York City, Rhode Island, and Washington. Contact your favorite outside employment counsel with questions on pay transparency laws and any other remote worker compliance issues.

As most human resources professionals know, the Immigration Reform and Control Act requires all employers to verify the identity and employment authorization of each person working in the United States who was hired after Nov. 6, 1986. This verification process is documented by completing and retaining USCIS Form I-9, Employment Eligibility Verification, for each employee who is hired to work in the United States. The form can be complicated to complete, and it is important for employers to follow the guidelines published by USCIS, which can be found at: https://www.uscis.gov/i-9-central/handbook-employers-m-274. The new employee completes Section 1 of the form, and the employer inspects furnished identification documents and completes Section 2 of the form. The completed form is then retained in the company’s records. Although employees are responsible for completing Section 1, it is the employer’s responsibility to ensure all required fields are properly completed. How does an employee properly complete Section 1 and what common mistakes should I look out for? The employee must complete all required fields in Section 1: Name, including other names used; Address; and Date of birth. The following fields in Section 1 are optional: Social Security number: this field is voluntary unless the employer participates in the E-verify program. If the employer participates in the E-verify program, the employee must provide their number but does not need to produce the social security card, unless the employee is using the card as a List C document; Email address; and Telephone number. Section 1 must be completed no later than the employee’s first day of employment. Before the employer completes Section 2, the employer should review Section 1 to ensure the employee completed it properly. If the employer finds any errors in Section 1, the employer should have the employee make any necessary corrections and initial and date the corrections. Common errors that employers should be aware of include: Failure to include other names used; Failure to include date of birth; and Requiring the employee to provide the SSN when the employer is not enrolled in the E-verify program. How does an employer properly complete Section 2? The employer is responsible for completing Section 2, and must physically inspect the documents presented by the employee. Unless the employer participates in E-verify, there is no requirement to keep photocopies of the documents presented. However, if the employer does decide to make copies of the documents, it must do so for all employees, regardless of national origin or citizenship status, or it may be in violation of anti-discrimination laws. The employee gets to choose which documents they will present. The employee must present either: One document from List A; OR A combination of one selection from List B and one selection from List C. The employer manual linked above contains a helpful list of acceptable documents and photographs of each type. If an employee presents a List A document, do not ask or require the employee to present List B or List C documents. If an employee presents List B and List C documents, do not ask or require the employee to present a List A document. This is a common mistake and can create an inference of “Unfair Documentary Practices” as explained below. In some cases, the employee will attempt to present a receipt in lieu of the actual identification or work authorization document. Although generally, receipts are not acceptable, in three (3) limited instances, the employer may accept a receipt (and follow up later to revise and update the Form I-9 when the actual document is issued): A receipt showing that the employee has applied to replace a List A, B, or C document that was lost, stolen, or damaged. The arrival portion of Form I-94/I-94A (Arrival-Departure Record) with a temporary Form I-551 stamp and a photograph of the individual. Departure portion of Form I-94/I-94A with a refugee admission stamp or computer-generated printout of Form I-94 with admission code “RE”. See Receipts | USCIS for more information. Is there anything different about the I-9 process for remote workers? As noted earlier, one of the core requirements of the I-9 process is that the employer (or its agent) must physically inspect the identification documents furnished by the employee to prove he or she is authorized to work in the United States. This requirement for physical inspection was always difficult for employers with remote workers, but it became nearly impossible at the beginning of the COVID-19 pandemic. Fortunately, Immigration and Customs Enforcement (ICE) – the agency charged with I-9 enforcement – issued certain relaxations to this strict physical inspection requirement. Although the relaxed ICE policy was intended to be temporary, it has been extended several times and now expires on October 31, 2022. See ICE announces extension to I-9 compliance flexibility | ICE The policy permits deferral of the physical inspection requirement for 60 days, or until 3 days after the termination of the current National Emergency declaration, whichever ends first (which is now October 31, 2022). Under this new inspection deferral policy, employers may remain compliant with the I-9 identification verification rules by following these steps: No later than the first day of employment (but not before accepting the job offer), the new employee completes and signs Section 1 of the Form I-9 and returns the form to the employer. No later than 3 days after the new employee’s first day of work, the employer will, through remote means: “Inspect” identification documents furnished by the new employee; and “Obtain, inspect, and retain” copies of the furnished documents; and Complete and sign Section 2 of the I-9. Once normal operations resume at the workplace, the new employee must report within 3 business days and present the identification documents for inspection. The employer must physically inspect these identification documents and annotate the Section 2 “Additional Information” box with the reason for the delay, an endorsement that the identification documents were physically inspected, and the date of the inspection. We suggest using the language “COVID-19 delay; documents physically inspected on [DATE].” Note that while the new guidance contains separate requirements for the employer to “inspect” and to “obtain, inspect, and retain” the identification documents (2.a and 2.b above), the precise language of the order suggests that these requirements could be accomplished in a single step: by obtaining scanned copies of the documents via email. To be especially rigorous, an employer could decide to both request emailed copies and conduct a remote, virtual inspection of the actual documents via video call. One additional requirement is that employers who exercise this deferred physical inspection option must provide written documentation of their remote onboarding and telework policy for each employee. Are there any limitations to remote verification? It is very important to note that ICE is permitting this remote verification option only for work locations where there are no employees physically present. If a company has any employees continuing to physically work at a specific worksite, then the normal I-9 requirement for physical inspections apply. However, companies may consider the remote status of their different worksites separately. If a company has employees continuing to work onsite and is thus ineligible for the deferred physical inspection option, the “normal” I-9 rules apply and the company may designate an authorized representative to complete the physical inspection requirement. This authorized representative can be a business partner of the employer or any third party willing to conduct the in-person inspection and complete Section 2 for the employer. The company remains liable for any violations on the form or violations committed during the verification process. What are Unfair Documentary Practices? The Immigration Nationality Act prohibits discriminatory documentary practices related to verifying the employment authorization and identity of employees during the employment eligibility verification process. Generally, when completing the Form I-9 or when re-verifying, employers may not specify which documents (from the full acceptable list) an employee should provide. Further, the employer may not request different documents than what the employee presents (so long as the documents presented appear to be genuine and meet the rules regarding acceptable documents). Importantly, employers may not reject reasonably genuine-looking documents. There are four broad categories of unfair documentary practices, with the most common listed first: Requesting that an individual produce more or different documents than are required by Form I-9 to establish the individual’s identity and employment authorization; Requesting that individuals present a particular document, such as a “Green Card,” to establish identity and/or employment authorization; Rejecting documents that reasonably appear to be genuine and to relate to the individuals presenting them; and Treating groups of individuals differently when verifying employment eligibility, such as requiring certain groups of individuals who look or sound “foreign” to present particular documents the employer does not require other individuals to present. The best way to avoid these problems is to permit the employee to choose which documents to use. If the employee “over-complies” by providing more documents than are necessary, explain to the employee what is needed and allow the employee to select which documents to use. Do not pick for the employee. What if we find mistakes? Can we correct the form? Generally, yes. USCIS and ICE encourage employers to conduct internal audits of their Forms I-9 and to correct mistakes when discovered. This will help avoid penalties if the employer is subject to an ICE audit. Below are the dos and don’ts for correcting I-9s: Don’t conceal changes or back-date forms. Enter missing information and date and initial it. Use a different color pen or font if online for any modifications or additions. If information needs to be removed or corrected, cross it out with a single line and date and initial it. Do NOT use white-out or other redaction. Attach a written explanation for any additions or revisions. Leave an audit trail (showing you discovered and corrected errors). Employees must make any necessary revisions to Section 1. Employers must make any necessary revisions to Sections 2 and 3. If necessary, a new I-9 may be completed for a particular individual (if there are many errors). In that case, the old form should be stapled to the new form and a note explaining why a new form was completed should be attached. For more information, you may contact Rebecca J. Bernhard at 612-492-6186 or bernhard.rebecca@dorsey.com.

Many U.S. employers have recently experienced frustration over legal obstacles to keeping high quality foreign-national employees. These valuable employees have often been with the company since finishing a degree and sometimes even interning with the employer. Other employers experience delays in hiring foreign nationals needed for specialized positions despite the obvious qualifications of the candidate. These employers’ frustrations reflect the current climate of immigration law and policy. The standards applied by the U.S. Citizenship and Immigration Service (USCIS) in adjudicating H‑1B temporary work visa petitions have been shifting, both formally and informally, to the detriment of businesses seeking to hire or retain noncitizen professionals in specialty occupations—as well as those they would seek to employ. This, along with other similar trends in how the executive branch enforces immigration laws, requires that employers and their legal advocates test new strategies on behalf of their clients. If USCIS denies your H-1B petition and your awesome employee may have to leave the country, what options do you have? Immigration lawyers, who typically fight their battles within administrative agencies, are increasingly looking to federal courts for judicial review of agency actions. One recent case highlights that strategic litigation can have a powerful impact, and suggests that specialized litigators may be a vital addition to the legal toolbox for businesses that depend on international hiring. See RELX, Inc. (d/b/a LexisNexis USA) v. Baran, 2019 U.S. Dist. LEXIS 130286. Subhasree Chatterjee earned her bachelor’s degree in computer science and engineering in her home country of India in 2011, and her master’s degree in business administration and analytics in the United States, from the University of Ohio, in 2016. She also has several years of professional experience in data analytics in both India and the United States. Chatterjee began working as a data analyst for LexisNexis at its Raleigh, North Carolina Center for Excellence in 2017, at which time she was authorized to work in the United States because of the Optional Practical Training (OPT) associated with her F-1 student visa. But Chatterjee’s student visa and OPT was set to expire on August 3, 2019. Lexis filed a petition for Chatterjee to remain in the United States through the H-1B nonimmigrant visa program so that she could continue in her role as data analyst supporting the company’s “flagship” product, LexisAdvance. The government denied the petition on the grounds that the data analyst position was not a “specialty occupation.” By statute, a specialty occupation is “an occupation that requires theoretical and practical application of a body of highly specialized knowledge; and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 8 U.S.C. § 1184(i)(1).   And by regulation, the position must meet at least one of four criteria to qualify as a specialty occupation: (1) a baccalaureate or higher degree is normally the minimum requirement for entry into the particular position; (2) the degree requirement is common to the industry in parallel positions among similar organizations or the position is so unique or complex that only an individual with a degree can perform it; (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a baccalaureate degree or higher.  8 C.F.R. § 214.2(h)(4)(iii)(A). In support of the H-1B petition, Lexis and Chatterjee submitted what the court would later call a “mountain of evidence” on three out of these four regulatory grounds, any one of which would have been sufficient to qualify the data analyst position as a specialty occupation. They responded to a request for redundant evidence and, following an initial denial, pursued administrative reconsideration. These efforts were unsuccessful. To justify its denial, the government asserted, contrary to its regulations and past practices, that a specialty occupation is one requiring a degree from a particular academic discipline. In other words, for example, if the position could be filled by someone with a degree in computer science or engineering, then it could not be a specialty occupation. Exactly one month before Chatterjee’s work authorization would expire, she and Lexis filed a lawsuit in federal district court in Washington D.C., serving USCIS, the Department of Homeland Security, and leaders of each, challenging the denial as a violation of the federal Administrative Procedure Act (APA) and seeking a preliminary injunction. Given the extremely short timeline before Chatterjee’s status would expire, the court placed the case on an expedited schedule to resolve the matter on its merits, skipping over the motion for preliminary injunction. Plaintiffs moved for summary judgment. The government spontaneously reopened the H-1B petition and then moved to dismiss the lawsuit, arguing that the reopening deprived the court of jurisdiction because plaintiffs’ claims were no longer ripe. On August 1-2 (the two days immediately preceding the expiration date of Chatterjee’s work authorization), the court held a hearing on both motions. The government’s motion was denied from the bench. In a subsequent memorandum, District Judge Emmet Sullivan concluded that the government’s “position [was] untenable,” that the “decision was not based on a consideration of the relevant factors and was a clear error of judgment,” and that “USCIS acted arbitrarily, capriciously, and abused its discretion.” RELX, Inc., 2019 U.S. Dist. LEXIS 130286, *28, 31 (quotations omitted). At the same time, plaintiffs’ summary judgment motion for an order directing USCIS to grant Lexis’s petition and place Chatterjee on H-1B status was granted—and just in time. Chatterjee was able to keep her job and remain in the United States, and Lexis continued business as usual with its data analytics team at full strength. In the current market, employers and their legal counsel need to use all avenues available under the law to help hire and retain top talent. Litigation is not only an option, but may be a necessary addition to the overall toolbox of talent management strategies, especially when it comes to international hiring.