Subject: HR Update: July 2018

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July 2018

U.S. Immigration and Customs Enforcement (ICE) will have three times more enforcement officers and plans to have five times more enforcement actions this year. To protect your company from civil and/or criminal penalties for hiring unauthorized workers, be sure to have completed I-9 forms in the employee files in case of an ICE inspection. You can find the I-9 forms and information here. 

You may ask for the I-9 information only after an offer of employment has been extended and accepted. Companies can make offers contingent on eligibility for employment, but be sure to treat all candidates equally. When requesting information, providing employees with the list of appropriate documentation from columns A, B, and C may help avoid pitfalls. You may not request any additional information or documents from anyone. To avoid potential discrimination allegations, the required information may be requested from only current or future employees and remember to treat everyone equally. 

Wondering whether the General Data Protection Regulation (GDPR) applies to human resources? If your company has any employees that are citizens of the European Union, the GDPR applies. This is a complicated law and requires direct action by HR professionals to comply. The general core HR principle of the GDPR is that the employees’ personal data must only be used for the express purpose for which the employees give consent and that the employees’ personal data must be protected. There is much more to the GDPR, so consult with an EU attorney to ensure that the company is complying with the law or you can learn more about 2018 reform of EU data protection here.

Following the status of the joint employer standard is like watching a tennis match: the standard changed in 1985, changed again in 2015, changed back to the 1985 interpretation in 2017, and then back to the 2015 interpretation in February 2018. Currently, the joint employer standard makes it easier for a company to be a joint employer of employees that are hired by a temp agency and placed within the company. The National Labor Relations Board has begun the rule-making process to tighten that definition and make it harder for companies to be considered joint employers. The rule will reduce the likelihood that temporary employees will be included in union organizing and voting. 

To access more information, visit

The National Labor Relations Board recently provided guidance to companies about whether certain workplace policies violate Section 7 of the National Labor Relations Act in light of a recent decision involving Boeing. Section 7 governs employee’s rights to organize, and the Boeing decision created a standard that balances the employees’ rights against the employers’ rights to exercise discipline and maintain productivity. 

Among other things, the guidance allows companies to institute civility rules, job conduct rules, prohibit disruptive behavior, photography and recording, defamation, and misrepresentation. The guidance also allows companies to prohibit the discussion and dissemination of intellectual property as well as confidential, proprietary, and customer information. The guidance identifies policies allowed, policies that warrant individual scrutiny, and policies that are unlawful. The guidance can be found here.
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