December 2008

It’s hard to ignore the potential exposure of the H1N1 flu. What would you do if it struck the employees at your workplace? HR That Works Members should also look at the Disaster Planning materials on the site.

The federal government has taken three actions recently that affect all employers regarding their hiring processes. Employers must be aware of these requirements as the failure to take appropriate action could result in civil and/or criminal penalties.

First, the U.S. Citizenship and Immigration Services (USCIS) revised the Form I-9 used to verify employment eligibility effective April 3, 2009. Generally, the revised Form I-9 regulation narrows the list of acceptable documents and requires that only unexpired documents be used. List A expanded with the addition of two documents that are acceptable for identity verification (specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands) and eliminated three documents that are no longer issued and have expired (Forms I-688, I-688A and I-688B). The revised I-9 contains other technical changes, including clarification that the only Social Security account number cards acceptable for List C are those that do not specify on the face that the “issuance of the card does not authorize employment in the United States.”

Second, the U.S. Department of Homeland Security (DHS) recently announced that the current administration intends to rescind regulations and procedures for employers that receive employee “no-match” letters from the Social Security Administration. The administration continues to support the use by federal contractors and subcontractors of E-Verify- the electronic employment verification system operated by the USCIS.

Seemingly, these announcements reflect a new immigration enforcement approach to target employers who hire illegal immigrants rather than individual employees who do not have the right to work in the United States.

Third, and ostensibly in support of the apparent shift in focus, the U.S. Immigration and Customs Enforcement (ICE) issued notices of inspection for a Form I-9 audit to 652 businesses nationwide on July 1, 2009. In issuing those notices, ICE stated that they were “a direct result” of its new strategy to build criminal cases against businesses suspected of hiring undocumented immigrants before they raid workplaces. With this one action, ICE issued more notices of inspection than it did during the entirety of 2008, and more notices are expected to come this year. In particular, ICE appears to be targeting industries and areas of the country that traditionally use undocumented workers, and employers who in the past have been flagged as potentially non-compliant (i.e., received no-match letters in recent years).

When conducting an audit, ICE may seek information including:

• Original I-9s, which must be retained for three years after the date of hire or one year after the date of termination, whichever period is longer.
• An alphabetical list of all current and former employees with the hire and termination dates in electronic format.
• Copies of quarterly wage and hour reports and/or payroll data for all employees (current and terminated) covering the period of inspection, and quarterly tax statements.
• Business documentation (contact information, employee numbers, Social Security numbers, articles of incorporation, licenses, etc.).
• Copies of Social Security no-match letters.
• A copy of any I-9 policy.
• The name and responsibility of those who complete I-9s.
• The date the business was established, form of the business, where it is incorporated and its revenue.
• The department or job titles of employees.
• Quarterly unemployment insurance reports with the state or quarterly returns for Federal Income Contributions Act taxes.

Practical Advice

In light of the government’s increased focus in this area, be prepared for an audit. Be sure to use the current Form I-9 for new employees. Check employment files to ensure a Form I-9 is completed for all employees (new, existing and former) within the required timeframes. Maintain the I-9 documents in a separate file for ease in compiling the required information in case of an audit (and to avoid any violation of various federal and state discrimination laws). Finally, be responsive to any indication that information an employee provided as part of the Form I-9 is inaccurate.

Contributed by Worklaw Member Millisor & Nobil.

Last month the EEOC issued regulations to help enforce the ADAA. You can anticipate that most of these regs will become final. They remind us of these important ADAA distinctions, including the fact that the definition of “disability” shall be interpreted broadly:

• A limitation need not “significantly” or “severely” restrict a major life activity in order to meet the disability standard.
• “Major life activities” is defined in two “non-exhaustive” lists:
  • One which includes “activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working”
  • One which includes “major bodily functions, such as functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemolytic, lymphatic, musculoskeletal, and reproductive functions.”
• Mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability.
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• Individuals covered under the “regarded as” prong are not entitled to reasonable accommodation (this is still required in California!).

Remember, our favorite ADA resource is the Job Accommodation Network.

On September 29, 2009 the EEOC entered a $6.2 million consent decree with Sears Roebuck and Company covering ADA violations that involved more than 400 employees. The decree requires Sears to notify each employee who is on leave for job-related injuries 45 days before their leave ends that they may request reasonable accommodation to return to work upon completion of the leave. The company must also list forms of reasonable accommodation that might be available to the employee, such as modified duty, transfer to another job, or a continuation of leave. Sears is required to establish a central management team to administer the leave requests and reasonable accommodation analysis.

This case began when a former service technician attempted to return to work when his Workers Compensation leave expired and while he still had limiting effects due to the job-related injury. Sears neither discussed reasonable accommodation with the technician nor offered him reasonable accommodation. The employee filed a discrimination charge and the EEOC sued Sears. During the discovery process, the EEOC learned that Sears did not provide reasonable accommodation for those who had completed Workers Compensation leave but were still disabled.

This consent decree illustrates a frequent problem with employer treatment of Workers Compensation claims under the ADA and FMLA. If an employee has a job-related injury or illness, the employer should assess whether it qualifies as a serious health condition. If so, the employee’s FMLA rights run concurrently with their Workers Compensation rights. If an employee seeks to return to work upon the expiration of FMLA or more generous leave for job-related injuries or illnesses and has limitations due to the injury or illness, the employer should engage the employee in a reasonable accommodation dialogue. Remember that under the new ADA, the definition of disability is interpreted broadly in favor of concluding that an individual has a disability. The ADA requires a case-by-case reasonable accommodation analysis. For example, in one situation, the employer might be able to accommodate the injured employee by extending leave with the opportunity to return to the same or an equivalent position; in another situation, perhaps accommodation is possible by transferring the employee to a different job which the employee can perform within his or her restrictions, even if that job pays less.

Article courtesy of Worklaw® firm Lehr Middlebrooks and Vreeland (www.lehrmiddlebrooks.com).

The June 2009 Employment Law Bulletin alerted readers to the EEOC’s focus on criminal background checks. On September 30, 2009, the EEOC sued an employer for using criminal background checks. In EEOC v. Freeman (D. MD), the commission alleged that the Freeman Companies disqualified applicants based on either their credit history or arrest or conviction records. The EEOC claims that the use of these background checks has a discriminatory impact based on race, national origin, and gender, because they tended to disqualify African-American, Hispanic, and male applicants at a substantially higher rate than other classes. The commission also argues that the credit and background checks “are not job related and consistent with business necessity” and that “appropriate, less discriminatory alternative selection procedures” are available to the employer. Finally, the EEOC claims that the use of the background check and credit histories deprive “African-American, Hispanic, and male job applicants of equal employment opportunities and otherwise adversely affect their status as applicants because of their race, national origin and sex,” by discouraging them from even applying for jobs.

Note that the EEOC’s case is not based on whether an employer has the legal right to use credit and criminal history checks. Rather, it argues that the use of such information has a discriminatory impact based on race, national origin, and gender, and thus violates Title VII of the Equal Employment Opportunity Act unless the employer can show the business necessity of using this information and that less discriminatory alternatives are unavailable. This lawsuit could have a substantial impact on employer hiring practices nationwide. We’ll monitor the case and apprise you of any developments.

Article courtesy of Worklaw® firm Lehr Middlebrooks and Vreeland (www.lehrmiddlebrooks.com).

Here are five powerful, proven ways to increase employee productivity today.

1. Set a goal for productivity improvement. When business leaders and managers are asked about their specific goals for improving employee performance, they usually have none! Most companies don’t have a goal or a plan for improving employee performance. They remain in a reactive mode, providing performance reviews with no specific goals. You should also set a goal for personal improvement. For example, if you want to become 10% more productive in the next 12 months, or even 90 days, what are your plans for reaching this goal?
2. Test and train people. There’s no substitute for being very clear about people’s skill sets, no matter what the position. Lawyers, architects, nurses, administrative assistants, HR executives, and everyone else in the workplace has a particular skill set they rely on daily. These skills can either be tested online by companies such as BrainBench.com, or by creating a test yourself. Once you understand where your employees might have a weakness, you can begin a training process.
3. Create a suggestion system that works. No voluntary suggestion system works that well. Dr. Edward Deming realized this when he helped the Japanese create the kaizen process, otherwise known as Total Quality Management. The Japanese saw improvement as an event, not a process – and so should you! Require every employee to provide a least one recommendation a month about how they can do their jobs better, or how you can run the business better. Reward each suggestion with a token gift such as a dollar, a raffle ticket, a lottery ticket, etc. Make the process fun. If you get a good “aha!” from some of these ideas, add them to your standard operating procedures, so that that everybody performs these functions in the same way.
4. Look outside your company. How are other companies, maybe even your competitors, improving their employee performance? What tools are they using? What can you learn from disparate industries that you can apply to yours? For example, how can you use technology more effectively to improve performance?
5. Publicize your goals. Once you state your goals, you or anyone else in your organization are far more likely to follow up with them. This is a fundamental part of creating commitment. As a lawyer, I can tell you that an agreement isn’t a commitment unless it’s in writing. If you have an overall company goal, put it in writing, blow it up on a poster, and have everybody sign it so there’s a public declaration of the goal.

If you’d like to provide any suggestions on how you’ve improved your employees’ productivity, please feel free to share them with us.

In his excellent book, The Case Against Competition, Alfred Cohen discusses how internal competitions generally are more destructive than beneficial to company performance. In contrast, an October 2009 Inc. Magazine article showed how “College Hunks Hauling Junk” created friendly competition that helped grow their company. Because most of their employees are college students and college rivalries are a big deal, the company created a contest. Eventually, this evolved to the point that ownership focused on key performance indicators as the basis for contests. They developed a dashboard which was available through the company Intranet (think Fantasy Football).

Although in-house rivalries worked for College Hunks, it can be poison for other companies. A classic example is the reluctance to disclose injuries or other problems in order to win safety competitions. To put together an effective in-house content, the Inc. article recommends these guidelines:

• Beware of temptations to cheat or sabotage rivals. This is one of the main concerns voiced by Cohen.
• Vary the size and choice of awards. Huge awards and over-emphasis on money can have negative consequences.
• Reward effort, as well as results. This is about playing win/win, not necessarily win/lose (for example, a nominal award of a lotto ticket, raffle ticket, or other symbolic thank-you).
• Publish real-time results. This has been effective in sales for years. There’s no reason to hide from results. In fact, it is part of the open-book management process we recommend all companies to follow.
• Assess your culture. If you’re already in a hostile or stressful environment, creating competition can be toxic. One way to assess your culture is to survey your employees or to allow them to create the contests.

Ultimately, the question is this: If we compete against each other, how can we do so in a safe and empowering way? If you can answer that question, you can motivate employee performance and grow your bottom line.

Eggnog, latkes, old friends, new friends – and a whole lot of beveraging! Believe it or not, the holiday season is just around the corner. On behalf of everyone at HR That Works, let us be the first to wish you a safe and happy holiday!

We also want to remind you that as you plan your workplace holiday festivities, plan for the safe arrival home of every guest. For some time, it has been settled law that if a guest at a workplace event consumes alcohol, drives, and injures or damages someone or something (including themselves) the host employer can be held liable by the court any for damage. It’s not enough for a representative of the host employer to discourage guests from drinking and driving. Courts require more active intervention.

To protect your guests and others from harm, and your workplace from legal liability, consider these best practices:

• Make sure that attendance at the party is voluntary.
• Hire professional bartenders to serve alcohol; these people are trained to spot intoxicated revelers and how to handle them.
• Provide non-alcoholic beverage options.
• Avoid an “open” bar; instead provide each guest with a limited number of drink tickets.
• Have food of substance – not just chips and pretzels – served whenever alcohol is available.
• Stop alcohol service two hours before ending the function.
• Confront intoxicated guests immediately and cut them off; don’t wait until they are ready to leave the party.
• Don’t inquire of an apparently impaired guest whether they think they’re able to drive home. The worst person to ask is the intoxicated person whose judgment is impaired; if you suspect that someone is unable to drive, don’t allow them to do so.
• Have a taxi service available for any guest who requires one.
• Call a friend or family member to pick up intoxicated guests.
• Arrange for discounted rooms at the event location (if possible) or a nearby hotel.
• Never allow anyone who appears intoxicated to get behind a wheel; if necessary, contact police for assistance.
• Contact your insurer to discuss appropriate coverage for your event.

Provided by Worklaw® Network firm Sherrard Kuzz LLP of Toronto.

The U.S. Court of Appeals for the Fifth Circuit has ruled that if an employer terminates an employee based on a good faith, reasonable belief that an employee engaged in misconduct, which might later prove to be a mistaken belief, this mistake does not demonstrate that the employer’s reason for disciplining the employee was pretextual.

Facts of the Case: In Cervantez v. KMGP Services Co. the employer terminated the plaintiff after it discovered that his computer User ID and password had been used to access pornographic Web sites from one of the company’s shared computers in the break room. The company conducted an investigation and determined that the plaintiff had been at work on the dates that his User ID was used to access hundreds of these sites. When the plaintiff was told that he was being fired, he denied having visited any such Web sites, and then sued the employer, alleging that he was fired because of his age in violation of the Age Discrimination in Employment Act. During a subsequent unemployment hearing, the plaintiff was given a copy of the log of Web sites he allegedly visited with his User ID. The plaintiff conceded that the log showed attempts to access prohibited sites on dates that he was at work, but he also identified attempts made on dates that he did not work or at times long after his shift had ended.

The Court’s Ruling: The Fifth Circuit found that the employer’s reason for discharging the plaintiff – violation of its computer use policy – was a legitimate, nondiscriminatory reason, and that the apparent inconsistencies in the log detailing the Web sites the plaintiff allegedly accessed did not demonstrate that the employer’s reasons for firing him were pretextual. The Court held that “a fired employee’s actual innocence of his employer’s proffered accusation is irrelevant as long as the employer reasonably believed it and acted on it in good faith.”

Lessons Learned: Employers often think that they must prove their suspicions regarding employee misconduct “beyond a reasonable doubt” before taking any action. This case, which is consistent with the law in most federal circuits, shows that the law does not require the employer to have irrefutable evidence of misconduct to take action. Employers who conduct a thorough investigation of the alleged misconduct and rely in good faith on the facts discovered in the investigation to make employment decisions limit their potential liability for discrimination claims, even if the facts relied upon later prove to be incorrect. Of course, employers must ensure that their investigations are thorough and do not exclude or ignore evidence that would ordinarily be considered.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).