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Showing posts with label legal news. Show all posts
Showing posts with label legal news. Show all posts

New bill would require employers to grant time off to veterans on Veterans Day

The U.S. House of Representatives recently introduced a bill that would give veterans November 11 off for the Veterans Day holiday. If signed into the law, the bill would apply to employers with 50 or more employees, and employers could choose whether to offer the day off paid or unpaid. Also, employees seeking the time off would have to provide at least 30 days’ notice.

The proposed legislation is modeled after a law that already exists in Iowa. Supporters of the bill say veterans have earned the right to a day off that recognizes their service. Opponents, however, fear that the legislation would create a division between employees and put undue financial restraint on employers.

Check back here for updates on the status of the bill – and if it will require a mandatory posting in the workplace.
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DOL and ABA partner to help resolve wage-related complaints

In the first-ever collaboration between a federal agency and the private bar, the Department of Labor (DOL) and American Bar Association (ABA) will join forces to resolve employee complaints received by the Wage and Hour Division (a department that handles more than 35,000 employment-related legal complaints in a typical year).

Through an attorney-referral system, the new program will ensure more workers obtain legal assistance for complaints such as not getting paid the minimum wage, not being paid overtime, or being denied family medical leave.

As of December 13, complainants whose cases cannot be resolved by the DOL due to limited capacity will get a toll-free number connecting them to a network of state and local ABA-approved attorneys. If the DOL has already conducted an investigation, the complainant will receive the findings to share with the attorney who takes the case. The DOL also has established a special process to help complainants and representing attorneys obtain additional case details and documents.

According to DOL Secretary Hilda Solis, this collaboration “streamlines worker access to additional legal resources and builds on the Department of Labor’s continued efforts to ensure that employers comply with America’s labor laws.”

To learn more, check out the We Can Help area of the DOL’s website.
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Survey reveals heavy financial burden of class action lawsuits

Based on the sixth annual Workplace Class Action Litigation Report by Seyfarth Shaw LLP – a leading law firm handling complex employment litigation – employers should be aware of several key trends that occurred in federal and state courts last year:

• Class action filings seeking recovery for unpaid wages and 401(k) losses increased. More age discrimination and Worker Adjustment and Retraining Notification (WARN) lawsuits were filed, too, due to workers being displaced in layoffs.

• Wage and hour litigation outpaced all other types of employment-related cases, especially in CA, FL, IL, NJ, NY, MA, MN, PA and WA.

• The Obama Administration’s renewed focus on regulation and enforcement, mostly through the DOL and EEOC, continues to increase exposure for employers.

• Massive settlements were seen in several nationwide class actions, as plaintiffs’ lawyers pushed for greater damages. The top 10 employment discrimination settlements in 2009 totaled $86.2 million, while the top 10 wage and hour settlements reached $363.6 million.

Just one major, costly lawsuit could be devastating to your business. Stay on the right side of the law and reduce your risk with legally compliant products and services – from Poster Guard® Compliance Protection to the latest FMLA, FLSA, OSHA and HIPAA compliance materials.
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Making COBRA available for domestic partners, too

Losing a job is difficult enough. But even more disruptive is losing your health coverage. That’s why many people opt for COBRA to maintain their coverage after termination – protection and peace of mind for you, your spouse and your dependent children.

But what if you’re in a gay relationship? Under current COBRA law, continuation coverage would not apply to your same-sex spouse or partner, even if you worked for a company that offered this level of health coverage.

Senator Barbara Boxer of California wants to do something about that. She recently introduced legislation – the Equal Access to COBRA Act of 2010 - that would allow many domestic partners the same access to COBRA health coverage that married couples currently have.

COBRA coverage would apply to those companies that already offer health benefits to domestic partners and their children. (Currently, that amounts to more than half of Fortune 500 companies.) Domestic partners could also tap into the 65% COBRA premium subsidy that has been extended a couple of times under the Obama administration.

On her website, Barbara Boxer states:

“This is a question of fairness: Every family deserves access to health insurance, especially in this tough economy. This bill ensures that domestic partners and their families will have equal access to health coverage after a job loss.”

Boxer’s proposed bill is now with the Senate Committee on Health, Education, Labor and Pensions.
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Under new proposal, COBRA premium subsidy would be extended again

As part of its proposed federal budget for fiscal year 2011, the Obama administration is recommending another extension to the COBRA health insurance premium subsidy – a move that Congress will most likely support.

If approved, employees laid off from March 1 through December 31, 2010, would be eligible for the 65% premium subsidy for up to 12 months. (Currently, employees who are involuntarily terminated from September 1, 2008, through February 28, 2010, can receive the premium subsidy for up to 15 months.)

“As long as unemployment remains at high levels and access to health insurance coverage remains spotty, the willingness to extend COBRA assistance will remain strong and persistent,” says Frank McArdle, a consultant with Hewitt Associates Inc. in Washington. workforce.com

More and more employees are opting for COBRA as a result of the 65 percent premium subsidy – part of a broad economic stimulus package Congress approved nearly one year ago. In fact, Hewitt discovered in a survey of 200 large employers that the number of employees choosing COBRA more than doubled to 39 percent during a nine-month period last year.

According to the Society for Human Resource Management (SHRM), only laid-of workers who could not get coverage under another group health plan (such as a spouse’s plan or Medicare) would be eligible for the subsidy. In addition, premium assistance is only available for individuals with incomes under $145,000 and families filing jointly with incomes under $290,000.

If you’re a little bewildered about the various extensions and how to communicate them to employees, you’re not alone.

"… as originally passed, the subsidy was provided for a period up to nine months. In December 2009, the period was extended to a total of 15 months, and under the latest proposal it would be 12 months," says Karen Frost, health and productivity solutions leaders at Hewitt Associates in Chicago. "That's three different time frames and three different provisions." shrm.org

As far as what this means to you as an employer, Frost suggests that the hardest part – adjusting to the original subsidy – is over.

"For the first extension, we just had to modify what we were already doing in terms of the subsidy. And the efforts around a second extension would be very similar. It's a modification; it's not a brand new game."

Until a possible second extension is approved, G.Neil recommends that you display a poster informing employees of their COBRA subsidy benefits to date.

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Independent contractor vs. employee: Proposed bill would toughen classification standards

In mid-December, 2009, Senator John Kerry introduced a bill in the Senate that focuses on employers misclassifying workers as independent contractors. The bill, called the Taxpayer Responsibility, Accountability, and Consistency Act of 2009 (S.2882), would amend Section 530 of the Revenue Act of 1978.

The “safe harbor provision” of Section 530 gave businesses some leeway in classifying workers as independent contractors for employment-tax reasons. If certain requirements were met and the business had a “reasonable basis,” it could treat an individual as an independent contractor without having to resort to the IRS’ 20-factor common-law test.

But that could change with Kerry’s proposed legislation. Under the Taxpayer Responsibility, Accountability, and Consistency Act, a business would have a “reasonable basis” for classifying a worker as an independent contractor (and not be held to the common-law test) only if it met these two new standards:

1) The employer didn’t treat any worker in a substantially similar position as an employee since December 31, 1977

2) The independent contractor classification was based on a written statement from the Department of Treasury that the worker was not an employee, or on an IRS examination that concluded the worker was not an employee

The bill would also require you to issue a Form 1099 to anyone your business pays more than $600 annually, in addition to giving workers classified as independent contractors the right to obtain a determination of their status from the Secretary of the Treasury.

So what’s your status, Gladys?

If a worker is classified as an employee, you are required to withhold income taxes, and pay Social Security, Medicare and unemployment taxes. With independent contractors, however, you do not have these same obligations.

Yet if you misclassify an employee as an independent contractor, you may pay dearly down the road.

Basically, the questions in the IRS’ common-law test fall under three categories:

1) Behavioral control – Does your business direct or control how a person’s work is done through instructions, training or other means?

2) Financial control – Do you direct or control the business aspects of a person’s job, such as reimbursing expenses or providing supplies?

3) Type of relationship – What is the relationship between your business and the worker, such as written contracts or employee-type benefits like insurance and vacation pay?

In most cases, if your level of control extends to what is done by an individual – as well as how it is done – then that worker is an employee and not an independent contractor. An independent contractor, as a sole proprietor, directs many aspects of the business relationship.

Getting this right is critical – and could become more so under the Taxpayer Responsibility, Accountability, and Consistency Act. Misclassify a worker and you could be looking at a substantial tax bill and penalties from the IRS. There’s also the possibility of a misclassified independent contractor suing you for not providing the necessary overtime, meal periods or rest breaks that an employee would receive.
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Texas oil refinery receives record-breaking OSHA fine

A mind-boggling $87,430,000. That's the amount the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) is proposing in penalties to BP Products North America, Inc. The reason? Failure to correct potential hazards to its employees.

BP's Texas City, Texas, refinery experienced a massive, fatal explosion in March 2005 that killed 15 workers and injured 170. In September of that year, BP entered into a
settlement agreement, committing to corrective actions that would eliminate the types of hazards responsible for the 2005 incident. Yet, after a recent six-month inspection,
OSHA is not satisfied with BP's efforts and has now issued this record-breaking $87 million fine.

"When BP signed the OSHA settlement from the March 2005 explosion, it agreed to
take comprehensive action to protect employees. Instead of living up to that
commitment, BP has allowed hundreds of potential hazards to continue
unabated," said Secretary of Labor Hilda L. Solis.

Solis also shared this stern message regarding BP's safety oversights:

"Fifteen people lost their lives as a result of the 2005 tragedy, and 170 others
were injured. An $87 million fine won't restore those lives, but we can't let
this happen again. Workplace safety is more than a slogan. It's the law. The
U.S. Department of Labor will not tolerate the preventable exposure of workers
to hazardous conditions."


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EEOC has beef with meatpacking company that violated civil rights of Muslim workers

The Equal Employment Opportunity Commission has determined that the U.S. unit of Brazilian meatpacking giant JBS SA violated the civil rights of more than 100 Muslim Somali workers in plants in Colorado and Nebraska, unlawfully harassing them and firing them based on their religion.

According to the Reuters article,

"The dispute began last year during the Muslim holy month of Ramadan when the
workers walked off the job after managers denied them a prayer break at sunset.

Supervisors had initially agreed to adjust work schedules to accommodate
the requests by Muslim workers but later reversed their decisions after
non-Muslim workers protested the changes.”


Under Title VII of the Civil Rights Act of 1964 (which prohibits workplace discrimination based on religion, ethnicity, country of origin, race and color), employers must reasonably accommodate the religious practices of an employee or prospective employee, unless doing so would create an undue hardship for the employer. Some reasonable religious accommodations that employers may be required to provide workers include leave for religious observances, time and/or place to pray, and ability to wear religious garb.

Yet in the past 15 years, claims of religious discrimination filed with federal, state and local agencies have doubled – spiking a record 15% in 2007. Perhaps as surprising, these numbers are growing faster than claims based on race or gender.

With workplace disputes over religion on the rise, it’s essential that you include diversity awareness and training in your anti-harassment initiatives. Be certain you’re taking active steps to prevent religious discrimination and harassment in the workplace and when necessary, are accommodating employees’ religious beliefs and practices.
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New HIPAA Breach Notification Rules kick in today

With medical data breaches on the rise, the federal government is taking action to help stem the problem. The Department of Health and Human Services (HHS) recently issued new regulations requiring health care providers, health plans, and other entities covered by the Health Insurance Portability and Accountability Act (HIPAA) to notify individuals when their protected health information (PHI) is breached. The HHS regulations came two days after the Federal Trade Commission (FTC) issued regulations outlining similar requirements for personal health record (PHR) vendors, PHR-related entities and third-party service providers.


“This new federal law ensures that covered entities and business associates are
accountable to the Department and to individuals for proper safeguarding of the
private information entrusted to their care. These protections will be a
cornerstone of maintaining consumer trust as we move forward with meaningful use
of electronic health records and electronic exchange of health information,”
said Robinsue Frohboese, Acting Director and Principal Deputy Director of OCR.
(HHS Press Release)

Under the new rules, businesses must immediately notify individuals of a breach, as well as the HHS (or the FTC) and the media when a breach affects more than 500 individuals. This new notice requirement is designed to help consumers make informed decisions when their health information is released to unauthorized users, while also prompting companies to enhance security. Businesses are also required to update their HIPAA policies and train employees on new procedures.

What is a breach?

A breach occurs when 1) there has been “unauthorized” access, use or disclosure of PHI, which violates the HIPAA Privacy Rule and 2) the disclosure “compromises the security or privacy” of the PHI, which means that it “poses a significant risk of financial, reputational or other harm to the individual.”

Let’s say, for example, your company sponsors a group health insurance plan and a laptop containing enrollment information constituting PHI is lost or stolen. You most likely would be required to notify the affected individuals. Or perhaps you operate a HIPAA-covered medical practice and a staff member impermissibly downloads patients’ PHI to his personal computer. Again, you would need to notify the affected patients.

The effective date of the new HIPAA Breach Notification Rules is today, September 23, 2009. However, HHS has stated it will not impose penalties until February 22, 2010.
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How healthy is your medical leave policy? It may be time for a checkup

The Equal Employment Opportunity Commission (EEOC) has filed a class-action lawsuit against UPS for violating the Americans with Disabilities Act (ADA) when it terminated an employee with multiple sclerosis. According to the lawsuit, this particular employee (as well as a whole class of disabled UPS employees) was unfairly treated under the company’s 12-month leave policy.

Some details regarding the case: The employee took a leave of absence from her job when she started experiencing symptoms that were later diagnosed as multiple sclerosis. She came back to work for a few weeks after the 12-month leave period, but then needed additional time off to deal with the negative side effects of her medication. It was at this point that UPS fired her for exceeding its 12-month leave policy.

From an EEOC press release:

“One of the main goals of the ADA is to provide gainful employment to qualified
individuals with disabilities. However, policies like this one at UPS, which set
arbitrary deadlines for returning to work after medical treatment, unfairly keep
disabled employees from working. Sometimes a simple conversation with the
employee about what might be needed to return to work is all that is necessary
to keep valued employees in their jobs.”

UPS is defending its 12-month leave policy, calling it “one of the more generous and flexible leave policies in corporate America.” The company claims the employee never asked for an accommodation under the ADA – and that after returning from a year’s leave of paid absence, she basically “abandoned” her position 18 days later, without providing any medical documentation justifying additional time off.

What about your company’s leave of absence policy? Could it pass this sort of ADA scrutiny? Are you prepared to handle and properly administer requests for reasonable accommodations? A quick checkup of your leave policy and ADA administration practices may be in order to ensure they are healthy, stable and could stand up in court.


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Dethroned former Miss California USA sues for religious discrimination

It’s been said that, “Beauty is in the eye of the beholder.” And with former Miss California USA Carrie Prejean suing pageant officials this week, so are claims of religious discrimination. Prejean is suing for libel, slander and religious discrimination, asserting that officials told her to stop mentioning God even before her controversial comments regarding gay marriage.

Prejean was fired from her position as Miss California USA in June, just months after the Miss USA Pageant where she spoke out against same-sex marriage. When asked whether she believes in gay marriage, she replied:

“We live in a land where you can choose same-sex marriage or opposite. And you
know what, I think in my country, in my family, I think that I believe that a
marriage should be between a man and a woman. No offense to anybody out there,
but that's how I was raised."

Was it this response that cost Prejean her crown – and ultimately led to her firing? While pageant co-director Keith Lewis claims Prejean’s termination was due to violation of contract (specifically, unwillingness to make public appearances), Prejean’s attorney, Charles LiMandri, says otherwise. He states:

“Over the past two months we have worked hard to provide overwhelming evidence
that Carrie Prejean did not violate her contract with Miss California USA and
did not deserve to have her title revoked by Keith Lewis. We will make the case
that her title was taken from her solely because of her support of traditional
marriage. Keith Lewis has refused to clear her good name or even to admit any
wrongdoing. Therefore, Carrie Prejean is left with no alternative but to take
her case to court where she expects to be fully vindicated.”

Do you think Prejean has a legitimate case here? Was she truly wronged for expressing her traditional religious beliefs? Or is this a carefully orchestrated publicity stunt that will meet its demise in court?

Regardless of your opinion of the “fallen” beauty queen, when it comes to religion in the workplace, the law is clear: Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. Yet in 2009, EEOC received 3,273 charges of religious discrimination, resolving more than 2,700 of these charges and recovering $7.5 million in damages.

As an employer, you must accommodate an employee’s religious beliefs and take active steps to prevent religious discrimination and harassment in the workplace. Start with a careful review of the current laws and your internal policies and procedures. Then, be sure you’re holding all employees and managers accountable for adhering to these policies.
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Has the No-Match Rule met its match with E-Verify?

In a bit of a “I told you so” move, the Department of Homeland Security (DHS) proposed a new regulation on August 19 that could kill the controversial Social Security Administration (SSA) No-Match Rule. As you recall, the rule established a “safe harbor” provision allowing employers 90 days to resolve any employment eligibility issues identified in a No-Match letter or notice from DHS. (Typically, an employee’s name and Social Security Number - as provided in a W-2 earnings report - not matching SSA records.)

Most employers aren’t sad to see the rule go. This is largely due to the fact that even though millions of undocumented immigrants receive No-Match letters every year, so do legal workers, due to clerical errors, unreported name changes and other discrepancies. Regardless of the circumstances, the No-Match Rule would have put employers in the hot seat, requiring them to penalize or fire workers who were unable to correct their Social Security records in time.

In the rule’s place, the DHS plans to focus its enforcement efforts on employer participation in E-verify. This free, Web-based system, operated by DHS in partnership with the SSA, compares employee information from the Employment Eligibility Verification Form (Form I-9) against federal databases. “E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” says DHS Secretary Janet Napolitano.

Like I mentioned earlier, it’s not like we didn’t see this coming. In a July 8 press release from the DHS, it was revealed:

DHS will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive SSA No-Match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records—often due to typographical errors or unreported name changes. E-Verify addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.


What to do in the meantime?

Even though it looks like the DHS will not be mandating a “safe harbor” process for responding to No-Match letters anytime soon, you should still follow some basic precautions when screening and verifying an employee’s eligibility to work.

By law, you may not:

Set different standards for verifying employment eligibility or require that different documents be presented by different groups of employees. For example, you cannot waive I-9 requirements for individuals appearing to be U.S. citizens.

Require applicants to provide I-9 documentation before making a job offer. Legally, job applicants do not have to verify their identity or employment eligibility until they actually start work.

Specify or select which documents must be provided. The I-9 form lists the specific documents an individual may provide to establish his/her identity and work authorization. Employers must allow individuals to choose from this list of permissible documents.

Discriminate against individuals with “temporary” work authorization status. Temporary resident aliens and individuals who have asylum typically have documents that expire, but they ordinarily obtain extensions.
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Overtime lawsuit could pack a huge financial wallop for UPS

Remember last week’s post on overtime pay – and the spike in employee lawsuits to recover “lost” overtime wages? And how important it is to properly classify employees as exempt or non-exempt, according to FLSA regulations? Well, no one is feeling the pain of this more than UPS right now.

Filed August 19 in federal court, a class action lawsuit claims that United Parcel Service (UPS), the world’s largest package delivery service, failed to pay as much as $100 million in overtime wages to its account managers. The plaintiff, a UPS employee since 2005, says she has regularly worked 60 hours a week but was only paid a straight salary. She adds that UPS misclassified her and other account managers as outside salespersons or administrative employees exempt from overtime pay. And therein lies the problem:

The suit says UPS' account managers don't make sales or obtain contracts nor do they perform managerial type work, and therefore shouldn't be classified as outside salespersons or administrative employees. (The Boston Globe)


To make matters worse, the lawsuit also claims that account managers were not given mandatory meal and rest breaks – and that UPS doesn’t keep accurate records of hours worked.

As a result, UPS is facing a potential jury trial, more than $100 million in damages and the payment of attorneys' fees. The class-action suit also seeks to represent other UPS employees facing a similar situation.

So I’ll wrap up today’s post with the same suggestion as last week: Check out the ComplyRight Now E-Guide, Determining Exempt vs. Non-Exempt Employees (and other FLSA compliance tools) for help figuring out whether an employee is exempt or non-exempt. With overtime lawsuits growing at a breakneck pace, now is the time to be absolutely certain you’re following FLSA exemption rules to the letter of the law.
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Gerber to pay $900,000 settlement for discriminatory hiring practices

Gerber Products Company in Fort Smith, Ark. will pay $900,000 in a hiring discrimination suit involving 1,912 minority and female applicants rejected for entry-level positions, according to an announcement from the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).

From the announcement:

During a scheduled compliance evaluation of Gerber Products in Fort Smith, OFCCP investigators found the hiring disparity was in part caused by inconsistent selection procedures for entry-level positions. Additionally, OFCCP found that Gerber used pre-employment tests that negatively impacted minority applicants and determined that there was insufficient evidence of validity to support Gerber's use of the test. Gerber has discontinued its use of the test in the hiring process for entry-level positions.


The test that Gerber used was the TABE, or Test of Adult Basic Education – a test that is primarily used by adult education centers to evaluate a student’s reading and math skills. Elizabeth Todd, spokeswoman for the Labor Department at Dallas, said the aptitude test, with its pass-or-fail results, “significantly impacted minorities.”

In addition to paying $900,000 in back pay and interest to the applicants, Gerber will:

  • Provide 61 entry-level positions (11 of whom have already been hired)
  • Undertake extensive self-monitoring measures to ensure they fully comply with the law when hiring, and promptly correct any discriminatory practices
  • Comply with Executive Order 11246 recordkeeping requirements

Employers can learn a few lessons from this case, most notably that the OFCCP, which is “responsible for ensuring that contractors doing business with the Federal government do not discriminate and take affirmative action”, can be a strict enforcer of employment discrimination laws. The agency monitors federal contractors to ensure they provide equal employment opportunities without regard to race, gender, color, religion, national origin, disability or veterans’ status.

Further, because recipients of federal funds must adhere to specific information reporting and auditing requirements, their hiring practices can fall under even tighter scrutiny with the OFCCP than with the Equal Employment Opportunity Commission (EEOC). Proper training for your hiring managers is essential, including a careful review of the tests and practices used to screen and select applicants for hiring.

“This settlement … should put all federal contractors on notice that the Labor Department is serious about eliminating systemic discrimination,” said Labor Secretary Hilda L. Solis.
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ICE announces audits, review Form I-9 best practices

Last week U.S. Immigration and Customs Enforcement (ICE) launched a bold audit initiative as a part of the agency’s stepped-up enforcement of employment and immigration laws. ICE issued Notices of Inspection to 652 businesses nationwide to alert employers that ICE will be inspecting their hiring records.

The Department of Homeland Security (DHS) requires employers to verify that all new employees are eligible to work in the U.S. using the employment eligibility verification form (Form I-9). Neglecting to fill out forms or filling out I-9 forms incorrectly can result in fines of up to $1,100 for every incorrect form.

Knowing how to fill out new-hire forms correctly and the rules on how long you must retain those documents will help protect your business in the event of an ICE audit.

Anyone in your organization involved in the hiring process should be trained on the correct way to complete I-9 forms and federal recordkeeping requirements. Training should cover Form I-9 best practices, including, but not limited to:

  • How to properly complete an I-9 form at the time you hire a new employee. Employees must present identity and work authorization documents within three days of the date of hire.

  • Expired documents as proof of identification or work eligibility are not acceptable. Review the list of documents that fall under List A of the List of Acceptable Documents.

  • The importance of keeping I-9 forms separate from employee personnel forms.

  • How using a binder system for storing I-9 forms, one for current employees and one for terminated employees, can help your business stay in compliance.

  • To periodically review current I-9 forms to identify employees who need to update their work eligibility status.

  • Businesses must retain I-9 forms for the duration of a worker’s employment, plus one year, or for a minimum of three years from the date of hire, whichever is longer.

Read more on how to handle I-9 forms and about the most recent changes to the I-9 Form.
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Sexual orientation, gender identity discrimination protections gaining legal ground

On Monday, President Obama recognized a 40-year milestone for the gay civil rights movement in the U.S. at a reception for LGBT Pride Month at the White House.

Obama has been criticized by the LGBT community because he has been slow to act on many of the promises he made during his campaign. However, he told the audience at the reception that his administration has taken steps to ensure equal rights for gay Americans and plans to do more.

From CBS News:

"We seek an America in which no one feels the pain of discrimination based on who you are or who you love," he said.

The president noted that he has signed a memorandum extending some federal benefits to LGBT families and is urging Congress to pass the Domestic Partners Benefits and Obligations Act, which would mean the extension of health care benefits.

He also said his administration is working to pass the Employment Non-Discrimination bill and a hate crimes bill named after Matthew Shepard.

"There are unjust laws to overturn and unfair practices to stop," the president said.


Just 10 days before the White House reception for LGBT Pride Month, Rep. Barney Frank re-introduced the Employment Non-Discrimination Act or “EDNA” (H.R. 2981). The bill makes it unlawful to discriminate on the basis of sexual orientation or gender identity.

EDNA would extend federal employment laws, which already protect individuals on the basis of race, religion, gender, national origin, age and disability, to also include sexual orientation and gender identity.

While lawmakers discuss the fate of the legislation, it may be a good time to take a look at your company’s employee handbook. Until now, most have not been written to include how to address harassment or discrimination based on an employee’s sexual identity or orientation.

Though many are late to get started, some of the biggest U.S. companies are ahead of the game. As of February 2009, 423 (85%) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation, and more than one-third had policies that address gender identity.

Preventing sexual orientation discrimination in the workplace starts with understanding current laws, examining your policies and procedures, and training employees to abide by those policies. But that’s just the beginning.

For more information on creating gender orientation policies and procedures, read our new free whitepaper Creating a Gender Orientation Policy for Your Workplace (pdf).
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Form I-9 expiration date extended past 6/30/09

The U.S. Citizenship and Immigration Services (USCIS) recently announced that the current Form I-9 will continue to be valid for use beyond June 30, 2009.

USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of the Employment Eligibility Verification Form I-9. While the request is pending, the existing I-9 form will not expire.

The extension will allow employers to use either the Form I-9 with the updated revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

USCIS expects to approve a new version of the Form I-9 before the June 30, 2009, expiration date. Read the full USCIS article here.

It is mandatory for all U.S. employers to verify the employment eligibility of new and existing employees by completing a Form I-9 for each individual.

The G.Neil legal team will continue to watch for news from the USCIS once the extension is approved. Check back here for the most current information available.
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Supreme Court limits worker age-bias suits

The Supreme Court handed down a verdict late last week that would give businesses more strength in employee lawsuits alleging age discrimination.

Employees now bear the burden of proving that age was a dominant factor in his or her firing or demotion in order to win a case. Under the Age Discrimination in Employment Act (ADEA), employees have the burden of proving that age was the “but-for” cause of an employer’s adverse decision.

With age-discrimination lawsuits growing at an alarming rate, the 5-4 ruling (Gross v. FBL Financial Services, Inc.) is considered a win for businesses that face age-bias lawsuits. Before last week, workers had to show only that age was a factor in the decision.

"The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age," Justice Clarence Thomas wrote for the majority. He added this legal rule applies "even when a plaintiff has produced some evidence that age was one motivating factor."

Karen Harned, executive director of the National Federation of Independent Business, said the opinion would help companies defend against age-bias claims. "Requiring claimants to show direct evidence that age played a substantial role in the challenged employment decision is the appropriate and fair standard," Ms. Harned said. (Wall Street Journal)


Since the U.S. economy began to slide downward, age discrimination claims filed with the Equal Employment Opportunity Commission (EEOC) have increased by 29%, a jump from 19,100 in 2007 to more than 24,500 in 2008. (Washington Times)

This case involved a lawsuit brought against FBL Financial Group by Jack Gross, under the ADEA. Gross claimed that FBL violated the ADEA when he was demoted and some of his prior responsibilities were given to a younger worker.
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E-Verify regulations on hold again

The federal government has extended the effective date of the E-Verify requirement for federal government contractors to September 8, 2009. The requirement was previously set to take effect on June 30, 2009.

The rule would require most government contractors to verify the immigration status of current and new workers using the federal government’s E-Verify electronic employment eligibility verification system.

Implementation of the requirement has been delayed “to allow President Barack Obama's administration more time to complete its review of the rule,” Jennifer Kerber, vice president for federal and homeland security policy for TechAmerica, wrote in an e-mail message to members today. (via Washington Technology)

An official announcement is expected to be published in the Federal Register later this week.

This will be the fourth delay in the effective date of the E-Verify regulations, which were originally scheduled to take effect in January.
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Unpaid interns and the FLSA, what you need to know before hiring summer help

Spring is here and summer fast approaching, along with droves of college students hoping to turn their free time into a few months of valuable on-the-job training.

Whether it's because they're simply looking for work experience, or they need to earn a few more college credits, many students are willing to intern for little to no money at all.

While many companies may see at it as the perfect opportunity to get some extra help around the office, there are a few legal issues to consider before agreeing to something for nothing.

Intern or employee?

The Fair Labor Standards Act (FLSA) requires that nonexempt employees receive at least minimum wage for all hours worked and must also receive time-and-a-half pay for all hours worked more than 40 during the workweek.

While the FLSA doesn't define what an intern is, nor provide an exemption from minimum wages or overtime for interns, it does define an employee as "any individual employed by an employer." The definition of "employ" under the FLSA "includes to suffer or permit to work."

Under federal law, for-profit organizations must pay workers unless the position fits six criteria:

  1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;

  2. The training is for the benefit of the trainee;

  3. The trainees do not displace regular employees, but work under close observation;

  4. The employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion the employer’s operations may actually be impeded;

  5. The trainees are not necessarily entitled to a job at the completion of the training period; and

  6. The employer and the trainee understand that the trainees are not entitled to wages for the time spent in training.

To ensure compliance, employers offering unpaid internships should structure the position in a way that the intern receives the full benefit of the experience.

Employers can take it a step further and establish a written agreement between the business and the intern outlining the terms of the unpaid internship. The document should contain a clear definition of the position, including that it is a learning experience.

If you're not careful, hiring an unpaid intern that later turns out to qualify as an employee could potentially cost your company thousands in unpaid wages and hefty legal fines. When in doubt, pay interns at least minimum wage to avoid legal problems.

Unpaid internships that do not match all six of the DOL's criteria could also lead to legal problems involving workers' compensation, employee benefits, discrimination laws, federal and state taxes, and unemployment insurance coverage.

Failing to comply with wage and hour laws can lead to serious FLSA administration errors that could cost your business thousands in fines. Tools like the FLSA Compliance Kit can help you navigate through every FLSA regulation from child labor laws to timekeeping discrepancies.

Any additional advice for companies hiring unpaid interns for the summer? Please leave a comment and share your tips.
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