Feds Turning up the Heat! Be Prepared!

July 25, 2011

Congress and the Executive Branch are frustrated with the entire immigration process in the United States. The Department of Homeland Security is working very hard to utilize advances in technology and data mining to develop a more effective I-9 system, as well the use of technology to better seal the borders.  The E-Verify I-9 internet based confirmation system is being continually enhanced. In addition, biometric social security cards and other ideas are being advanced.

We are constantly finding that clients are out of compliance during our I-9 audits. Employer sanctions growing! We strongly recommend that employers re-double their efforts to make sure their current I-9’s conform to the law.  Here is a list of top 10 tips to help you comply:

1.  After an Employer makes a job offer and the applicant accepts the offer, request that the I-9 be filled out and examine the original documents that the applicant chooses to show as proof of work authorization.  Once an offer has been accepted, an Employer does not need to wait until the first day of employment to I-9 the individual.  However, the I-9 form should be done no later than the third day of hire.

2.  Make sure the I-9 is completely and accurately filled out by both the new hire and your company. Take the time to carefully review the answer for each field of the form.

3.  You are not required to keep copies of the documentation but if you do, keep the copies in the personnel folder. Do not staple the copies to the I-9 form. If you have questions on this call me.

4.  Never pay cash to an individual who is not work authorized as a means of circumventing the I-9 regulations.  Never classify an individual as an independent contractor in an attempt to circumvent the I-9 or other regulations.

5.  Never accept expired documents from new hires.  The only exception is a 90 day grace period for new hires that are U.S. Citizens or green card holders that have already applied for a replacement document – i.e. a replacement of a U.S. passport, state driver’s license etc.

6. The I-9 forms divides up the workforce into 4 categories – U.S. Citizens, U.S. Nationals (Samoa and Swain Island), permanent residents, and aliens authorized to work for a limited duration. Once verified, it is this latter category that must very carefully tracked since their work authorization will expire – i.e. work permits, H-1B petitions, TN workers, etc.  Employers should not re-verify the I-9 of an existing U.S. Citizen, U.S. national or permanent resident employee merely because their documents have expired.  Once hired, foreign national workers on temporary employment authorization must be carefully tracked.

7.  Maintain the I-9 records for employees for 3 years from the date of termination.  Keep all your I-9’s in binders – separate current employees from terminated employees.  In the event of an I-9 audit by Immigration & Customs Enforcement (ICE), this will make it much easier to produce them within the 3 days requested by the agency. Scanning and making digital copies at the time of hire is also a good practice.  Do not keep the I-9 in the employee’s HR file.

8.  ICE recognizes a good faith exception to occasional I-9 errors that are minimal and inadvertent.  When conducting an I-9 audit within your company, if you find errors or incomplete forms, we suggest you take a red pen and make any corrections.  Do not destroy any evidence or alter any evidence.  You may also annotate in the margin of the I-9 why you made a particular correction and date it, or you can attach an explanatory memo.  In some cases, it is easier to fill out a brand new I-9 instead and staple it on top of the old one.

9.  When in doubt, do not rely on the employee’s excuses as to why they are not authorized to work (offering excuses that the paperwork is “in process”).

10.  Take the I-9 seriously.  They are here to stay and the government is turning up the heat.  The consequences of not complying are great – monetary fines, jail time, and asset forfeiture of the entire business.


IRS Mileage Rate Increases July 1

July 21, 2011


Just in case you have not heard!

The IRS has announced a 4.5 cent increase in the standard mileage rate to be in effect for the last six months of 2011.  Effective July 1, 2011, employers who use the IRS rate to reimburse employees for business mileage must pay 55.5 cents per mile.  We will post any further changes here.

New Insight on Same Sex Harassment

July 18, 2011


Applying the U.S. Supreme Court’s long-standing analysis of same sex harassment provided in  Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998), a California Court of Appeal examined what it means to suffer harassment that amounts to discrimination by members of the same sex.  In Kelley v. The Conco Companies, apprentice ironworker Patrick Kelley was indisputably subjected to an obscenity laced, sexually charged tirade by a supervisor and intermittent sexually demeaning comments and threats of physical violence by co-workers in retaliation for complaining about the supervisor.  Kelley was reassigned and eventually suspended by his union for an unexcused absence.  After his six-month suspension ended, Conco did not re-hire Kelley.

The appellate court’s ruling focused on what it means for discrimination to be based on sex.  “The difficulty arises in determining when same-sex harassment amounts to discrimination because of sex.”  While acknowledging that the words directed at Kelley were “graphic, vulgar, and sexually explicit” and “crude, offensive and demeaning,” the statements were neither an expression of sexual interest, nor a comment on Kelley’s actual or perceived sexual orientation.  More bluntly, when a supervisor refers to a male employee as a “bitch” it is not kind, but it is not harassment in the absence of sexual interest or animus.

Nonetheless, they Kelley decision is hardly an unambiguous “win” for employers.  The court held that Conco’s eventual failure to re-hire Kelley after his suspension was not retaliatory.  But tolerance by Conco of the occasional sexual comments and threats of violence by co-workers that followed Kelley’s complaint may in and of itself constitute an adverse employment action sufficient to satisfy the requirements for a retaliation cases. The court explicitly ruled that “an employer may be held liable for coworker retaliatory conduct if the employer knew or should have known of coworker retaliatory conduct and either participated and encouraged the conduct, or failed to take reasonable actions to end the retaliatory conduct.”

Employers must take care to remind the employees with knowledge of complaints that retaliation is strictly prohibited, and then must follow-up to insure that the employees take the warnings seriously.

Let’s be reminded that this is the mandatory year for the sexual harassment training for employers who have more than 50 employees.

California Supreme Court-Pay Overtime to Employees From Other States

July 11, 2011

Issuing its decision in the long-pending Sullivan V. Oracle Corporation case, the California Supreme Court extended the protection ofCalifornia’s overtime laws to residents of the remaining 49 states who perform work inCalifornia for their California-based employers.  The three plaintiffs were instructors for the California-based software giant, working primarily in their home states, but traveling to other states – includingCalifornia – to present training sessions as needed.
The Sullivan claims stretch back nearly a decade to misclassification disputes under federal and state law, resulting in the three questions answered in the recent ruling:  1) Can non-resident employees collect overtime compensation pursuant to California Labor  2) can these same employees seek restitution for the same claims pursued under California’s Unfair Competition Law (UCL) and finally 3) can the employees seek restitution for violations occurring outside of California’s borders? The short answers are yes, yes and no.

The long answers are hardly more encouraging forCaliforniaemployers.  On the first question, the Court cited to the plain language of the statute, stating simply that “any work in excess of eight hours in one workday and . . . 40 hours in any one workweek . . . shall be compensated at the rate of no less than one and one-half times the regular rate of pay.”  The Court ruled, in essence, that the regulations say what they mean and mean what they say: Californiaovertime laws apply to employees who work inCaliforniaregardless of where they live.  Expressly left open, however, is the question of applicability of otherCaliforniawage and hour laws and employment regulations to visiting employees.  “California’s interest in the content of an out-of-state business’s pay stubs, or the treatment of its employees’ vacation time, for example, may or may not be sufficient to justify choosingCalifornialaw over the conflicting law of the employer’s home state.”  It is safe to assume that someCaliforniaemployer will face a lawsuit to settle these open questions.

The Court concluded further that since it has long held that theUCLapplies to overtime claims, it applies equally to overtime claims brought by non-Californians, extending the statutory limitations period from the Labor Code’s three years to theUCL’s four-year reach.

Lastly, the Court concluded that simply because an employer is headquartered inCalifornia, it is not subject toUCLclaims for Federal Fair Labor Standards Act violations occurring outside ofCalifornia’s borders.

Given the employment laws that regulateCalifornia’s employers and the open ended nature of the Court’s decision, similar claims based on the state’s numerous labor provisions are sure to be in the pipeline.  Californiaemployers with non-resident employees performing some work withinCaliforniaare advised to review their pay practices applicable to these employees for compliance withCalifornialaw.

“Trash” Talk About The Employer On Facebook-Protected By The NLRB

July 4, 2011


Before rushing to discipline or terminate an employee who has posted negative comments on Facebook about the Company, well advised employers should carefully review their social media policies and determine whether taking such action might result in violating the employee’s Section 7 rights under The National Labor Relations Act which basically states (in part) that all employees, regardless of union membership, has the right to engage in “protected concerted activity” for the purpose of “mutual aid and protection.”

The law is quite clear that even one employee can engage in “protected concerted activity,” provided that activity has the result or even the possibility of effecting change for other employees.

As the universe of social media continues to explode at a dizzying pace, employers are struggling to keep up with and control the content of what their employees, among others, are posting on the internet for all to see.  Many employers have reacted, understandably, by adopting highly restrictive policies threatening discipline or even termination of employees who post unflattering content about the employer, its products or services, management and/or fellow employees.  In some contexts, such as the prevention of discriminatory, harassing or retaliatory conduct, such policies are both legal and advisable.  However, to the extent they infringe on employees’ rights to engage in protected concerted activity, many such policies potentially violate the National Labor Relations Act.  Many non unionized employers are surprised to hear that their employees have rights under the National Labor Relations Act, even in a non union environment. 

Last month, the NLRB sued a car dealership which fired a salesman who used his Facebook page to complain about the food the dealership served to its customers during a recent promotional event.  Importantly, this Facebook posting also mentioned the salesman’s fear that the perceived lousy food (hot dogs and bottled water) would impact sales commissions, and thus, alleged the NLRB, such posting constituted protected concerted activity, rendering the salesman’s termination a violation of his Section 7 rights.  Similarly, the NLRB has ruled that employers violate their employees’ Section 7 rights by disciplining employees who post comments on the internet which are critical of their terms and conditions of employment.  Conversely, in other cases, the NLRB has refused to proceed in other cases where the discipline resulted not from the complaints or concerns about terms and conditions of employment, but instead from disparaging comments about the products or services provided by the employer.  For instance, the NLRB has specifically upheld Sears and K-Mart’s social media policy, even though it restricted employees from complaining about Company management, because the context in which such restrictions appear make it evident the intent of the policy is not to infringe on employees’ Section 7 rights.  Given the disparity of conclusions drawn by the NLRB concerning various social media policies, it is difficult to predict how it might rule on any particular policy’s application to a particular termination or disciplinary action.  Indeed, as in other areas, the law is evolving a few steps behind the evolving technology, leaving employers on uncertain ground in the meantime.