Florida Employment Law Blog

Flirtation and Brief Touchings are Not Sexual Harassment -- Or are They?

Richard Tuschman — Wed, 10 Mar 2010 16:45:13 -0500

Is the Eleventh Circuit Court of Appeals going to reverse its decision in the controversial case of Corbitt v. Home Depot?

Last August I reported on this decision by the Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama), in which the court analyzed the claims of two former Home Depot employees who claimed their male supervisor repeatedly subjected them to unwanted flirtatious compliments and sexual touchings. The plaintiffs alleged that the supervisor made such comments as "your hair is beautiful," and "I like your green eyes" and touched the plaintiffs in a sexual way on several occasions. He even allegedly told one of the employees, “I know you’re not gay, but you’ve probably thought about it, I could show you how, I know you’ll like it." The court held that under the totality of the circumstances, the supervisor's conduct was not sufficiently severe or pervasive to constitute sexual harassment under Title VII.

In December the court issued a revised opinion that reached the same result on the plaintiffs' sexual harassment claims.

Today, however, the court vacated its December opinion and announced that the case will be reheard en banc, i.e. by the whole court rather than a three-judge panel. This is a significant development that may portend a reversal of the holding in Corbitt and a change in the law on sexual harassment in the Eleventh Circuit. Stay tuned.

UPDATE - COBRA Subsidy: New Extension Through March 31, 2010

Richard Tuschman — Tue, 09 Mar 2010 15:07:52 -0500

The following EBG client alert should be of interest to all Florida employers.

By Joan A. Disler, Michelle Capezza, and Jason M. Rothschild

As we reported in our Client Alert of December 24, 2009 ("UPDATE: COBRA Subsidy: What It Means for Employers Now"), President Obama signed into law the Department of Defense Appropriations Act, 2010 (the "Defense Appropriations Act"), which, among other things, extended and expanded certain provisions of the American Recovery and Reinvestment Act of 2009 ("ARRA") pertaining to premium assistance for benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). The Defense Appropriations Act extended the COBRA premium subsidy program for assistance-eligible individuals who became eligible for COBRA from the period that began September 1, 2008, and ended on December 31, 2009, to the period that ended on February 28, 2010.

On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010 (the "Act"). The Act extends the 15-month COBRA premium subsidy program for an additional 31 days. Thus, this extension will provide the COBRA premium subsidy for eligible individuals who are involuntarily terminated from employment through March 31, 2010. Congress is currently considering another bill, H.R. 4213, the Tax Extenders Act of 2009, which would extend the COBRA premium subsidy program through the end of 2010.

The Act also expands the application of the premium subsidy to individuals who had a reduction of hours of employment (occurring from September 1, 2008, through March 31, 2010), followed by an involuntary termination that occurs on or after March 2, 2010 and before April 1, 2010. These individuals are eligible for the premium subsidy on a prospective basis, whether or not they made an election of COBRA coverage on the basis of the reduction of hours of employment. In such cases, the involuntary termination of employment is treated as the qualifying event for purposes of obtaining the subsidy. However, pursuant to the Act, the maximum duration of the COBRA period is determined as if the qualifying event were the reduction of hours of employment. Any of these individuals who have these new election rights are not required to make payments for any continuation coverage between the reduction of hours and the involuntary termination of employment. It is not clear whether the intent of the legislation is also to allow an eligible individual to elect retroactive (unsubsidized) coverage as of the date of the reduction of hours of employment. Administrators of group health plans will now have additional notice requirements with respect to individuals who are COBRA assistance-eligible under this new rule.

The Act also includes clarification regarding an employer's determination as to whether an employee's termination was involuntary. The Act provides that, for purposes of the COBRA subsidy rules, a termination of employment shall be deemed to be an involuntary termination, provided that (i) the employer determines that such termination is an involuntary termination based on a reasonable interpretation of ARRA and the administrative guidance thereunder, and (ii) the employer maintains supporting documentation of the determination, including an attestation by the employer of involuntary termination.

The Department of Labor Employee Benefits Security Administration has updated the introduction on its COBRA Web page to reflect the Act and is in the process of updating the fact sheet, frequently asked questions and other materials on the COBRA Web page. Additional guidance is anticipated

ICE Expands Worksite Enforcement Activities in the Southeast

Hector Chichoni — Mon, 08 Mar 2010 14:54:19 -0500

On Tuesday, March 2, 2010, the U.S. Department of Homeland Security (“DHS”) announced that it was expanding its worksite enforcement strategy in the Southeastern United States. As part of this strategy, the U.S. Immigration and Customs Enforcement (“ICE”), the agency within DHS directly responsible for worksite enforcement, indicated that it is issuing Notices of Inspections (“NOIs”) to 180 businesses in Tennessee, Alabama, Arkansas, Louisiana and Mississippi.

These NOIs alert the businesses that ICE will be inspecting their Form I-9s and seeking to review voluminous other business records, including a list of current and terminated employees with hire and termination dates; the names, social security numbers and dates of birth of all active employees; quarterly wage and hour reports and/or payroll data on all employees covering the period of inspection; quarterly tax statements; all correspondence with the Social Security Administration (including “No-Match” letters); and more! All of this is an effort by ICE to determine whether the businesses are complying with federal employment eligibility verification laws and regulations. This DHS announcement is the latest in a series of expanding worksite enforcement efforts by the Obama administration. Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers.

Hector Chichoni, the Chair of EBG’s Southeastern Immigration Practice, notes: “this action by ICE underscores what the Immigration Law Group at EBG has been advising clients since the Obama administration took office. Businesses need comprehensive employment verification and related compliance plans in place because the civil and potentially criminal consequences of this enforcement strategy can be severe. Businesses that ignore this important aspect of their operations can face substantial fines that make compliance now not only good corporate citizenship, but also good risk management.”

These ICE inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area. This latest ICE action in the Southeast underscores the need for all businesses to review this important aspect of their operations, develop compliance plans that will protect them from this potential liability and have in place crisis management procedures, including access to outside counsel that specializes in this area, in the event that the “ICEman” cometh!

Miami-Dade County Passes New Wage Theft Ordinance

Richard Tuschman — Wed, 03 Mar 2010 11:42:44 -0500

By Teresa Maestrelli

The Miami-Dade Board of County Commissioners recently approved a Wage Theft Ordinance designed to make it easier for employees to take legal action against employers that fail to pay (or underpay) them. Under the new ordinance, the county will rely on a streamlined hearing examiner process to address complaints by employees.

The unanimous vote made Miami-Dade the first county in the nation to adopt a countywide wage theft law.[1] For nearly a year, members of the South Florida Wage Theft Task Force - a coalition of union, immigrant, faith, women’s and legal services organizations - worked with County Commissioner Natacha Seijas, the principal sponsor of the ordinance, to craft and introduce the ordinance.

The ordinance bars wage theft, and allows the county to use its police powers to intervene and help recover workers’ back pay. The ordinance specifically applies to private sector employees and employers in cases involving at least $60 (the “threshold amount”). Under the ordinance, wages include pay for daily, hourly, or piece work at a rate no less than the highest applicable rate established under federal, state, or local law.

Wage-Theft Violations:

An employer that fails to pay a portion of wages due to an employee, according to the wage rate applicable to that employee, within a “reasonable time” from the date on which the work was performed by the employee, shall be wage theft. The ordinance establishes a presumption that a “reasonable time” is no later than 14 calendar days from the date on which the work is performed. Employers may lengthen the period of time between the date work is performed and the date the employee is paid wages, for a period not to exceed 30 days, upon express written agreement signed by the employee.

Procedures for Wage-Theft Complaints:

An aggrieved employee may file a complaint with the county alleging a violation of the ordinance. The complaint must set forth the facts upon which it is based with sufficient specificity to identify the employer and for the county to determine both that an allegation of wage theft has been made, and that the threshold amount has been met. Upon determining that the complaint alleges wage theft, the county will then serve the complaint on the employer, which will have 20 days to file an answer.

Hearing Before Hearing Examiner:

Upon request by either party, a hearing will be held before a Hearing Examiner appointed by the county. In conducting any hearing to determine whether a violation of the ordinance has occurred, the Hearing Examiner will have the authority to administer oaths, issue subpoenas, compel the production of and receive evidence. The burden of proof by a preponderance of the evidence rests upon the complainant/employee.

Upon the conclusion of the hearing, an adjudicative final order will be issued and served upon the parties setting forth written findings of fact and conclusions of law.

Enforcement of Violations:

At the conclusion of the hearing and upon a finding of a wage violation, the employer will be ordered to pay wage restitution to the affected employee in an amount equal to three times the amount of back wages that the employer is found to have unlawfully failed to pay the employee. The county will further order the employer to pay the Board of County Commissioners an assessment of costs not to exceed actual administrative processing costs and costs of hearing. The new ordinance provides for additional penalties for failing to comply with the Hearing Examiner’s order.

As demonstrated above, the penalties for violation of the ordinance can be costly. Employers in Miami-Dade County need to be sure that they comply with the new ordinance by timely paying wages due to their employees. As stated, the new ordinance establishes a presumption that a reasonable time is no later than 14 calendar days from the date on which the work is performed, however, employers are free to modify that (for a period not to exceed 30 days) by an express written agreement signed by the employee.

[1] San Francisco has an ordinance similar to Miami-Dade’s, but it only covers the city. Los Angeles and New Orleans also are considering wage theft legislation.

Florida Led Nation in FLSA Lawsuits in 2009

Richard Tuschman — Mon, 01 Mar 2010 09:34:08 -0500

Florida led the nation in Fair Labor Standards Act lawsuits in 2009. Statistics generated from PACER (Public Access to Court Electronic Records) show that about 2000 new cases were filed in United States District Courts in Florida last year, far more than in any other state.

Of course, Florida is not the only hotbed of wage-hour litigation. California, which has its own, more rigorous wage-hour laws, has a large number of wage-hour cases filed in its state court system. Texas and New York are also seeing increasing numbers of wage-hour cases.

But when it comes to the FLSA, the Sunshine State rules. The reasons for this are somewhat mysterious. Are Florida employees more litigious than in other states? Do Florida employers violate the FLSA more often? Is there a more active plaintiff-side employment bar in Florida? I suspect the answer is a combination of all these factors, plus good old-fashioned word of mouth. Here’s what I mean: The vast majority of FLSA cases settle before trial. FLSA settlements generally must be approved by a court, see Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982), and many judges refuse to allow FLSA settlements to be confidential. And even if the terms of a settlement are confidential, a settling plaintiff can always disclose that the case has been “resolved amicably,” or words to that effect. Whatever the exact words, the message is clear – the plaintiff got a nice check. It’s like that old shampoo commercial from the 70’s: a settling plaintiff tells two friends, and they tell two friends, and so on and so on… Pretty soon you have 2000 FLSA cases on the docket.

So what can a Florida employer do to avoid being named in an FLSA lawsuit? Well, the best advice I can offer is to make every reasonable effort to comply with FLSA. That may seem obvious, but it’s not as easy as it sounds because the FLSA can be counterintuitive; its rules are often inconsistent with what seem to be reasonable and ethical business practices. But if you learn what the FLSA requires, and adopt policies and practices that are consistent with the law, you will go a long way toward avoiding a lawsuit. And, yes, get the advice of a qualified employment lawyer if you are unsure about what to do. Believe me, it will be far less expensive than litigation.

UPDATE - COBRA Subsidy: DOL Issues Updated Model COBRA Notices and Other Guidance

Richard Tuschman — Sat, 27 Feb 2010 13:32:42 -0500

The following EBG Client Alert should be of interest to all Florida employers

by Joan A. Disler and Ray Kaplan

As we advised you in our Client Alert that was issued on December 24, 2009 ("UPDATE: Cobra Subsidy: What it Means for Employers Now"), President Obama signed into law the Department of Defense Appropriations Act of 2010 (the "Act"), which, among other things, extended and expanded certain provisions of the American Recovery and Reinvestment Act of 2009 ("ARRA") pertaining to premium assistance for benefits under the Consolidated Budget Reconciliation Act of 1985 ("COBRA"). The Department of Labor ("DOL") has issued the following updated information, of which we wanted to make you aware:

On February 17, 2010, an updated Application for Expedited Review of Denial of COBRA Premium Reduction for the amendments to ARRA under the Act.
On January 13, 2010, updated model COBRA notices to reflect the changes made by the Act, which are available on the DOL Web site by accessing the following link: .
On January 11, 2010, an updated fact sheet, FAQs for employees, and posters and flyers for the provisions extending the ARRA premium reduction in the Act, which are available on the DOL Web site by accessing the following links:

Immigration Compliance and Worksite Enforcement: A New Risk Management Concern for Employers in the Healthcare Industry

Hector Chichoni — Fri, 12 Feb 2010 13:39:22 -0500

Copyright 2010 American Health Lawyers Association, Washington, DC.
Reprint permission granted.
Further reprint requests should be directed to
American Health Lawyers Association
1025 Connecticut Avenue, NW, Suite 600
Washington, DC 20036
(202) 833-1100
For more information on Health Lawyers content, visit: http://www.healthlawyers.org.

Hector A. Chichoni, Esquire

Robert S. Groban, Jr., Esquire

Frederick Warren Strasser, Esquire

Epstein Becker & Green PC

New York, NY, and Miami, FL

Introduction

As the current debate over healthcare reform has dominated the headlines, the business of running America’s healthcare institutions has never been more challenging. Healthcare executives are being forced to navigate their institutions through the most difficult economic and regulatory environment in recent history. In this article, we hope to ease that management burden by identifying an area of regulatory exposure—immigration compliance and worksite enforcement—that many healthcare executives may overlook as they struggle to address all of their other operational needs. The additional regulatory exposure from inadequate immigration compliance becomes even more critical when you consider the healthcare workforce’s sheer size. The U.S. Department of Labor (DOL) identifies the healthcare industry as the country’s largest employer, accounting for more than fourteen million jobs annually.1 The DOL also estimates that the healthcare industry will add another three million new jobs from 2006-2016, more than any other industry. Managing a diverse healthcare workforce has never been simple given the unique way in which most hospitals and other healthcare institutions function. Unions, medical practices within hospitals, independent contractors, and third-party contractors can be found in nearly every large healthcare organization, along with a complex matrix of professional, quasi-professional, and non-professional employees that must be recruited, trained, and managed in a manner that comports not only with labor and employment laws, but also with regulatory requirements, licensing, and union agreements. Amid this vortex of legal obligations, it is easy to overlook the increasingly important legal responsibility of Form I-9 compliance. 2 As recent actions by the administrations former President George Bush and President Barack Obama demonstrate, however, the failure to address immigration compliance can have serious civil and criminal consequences to the organization, as well as its employees and senior management.

IRCA and Worksite Enforcement

When Congress passed the Immigration Reform and Control Act of 1986 (IRCA),3 it made it unlawful for employers to hire or retain undocumented workers and established a process, the Form I-9 process, that required employers to verify the identity and employment eligibility of all workers hired on or after November 6, 1986.4 In the twenty years following IRCA’s enactment, the Immigration and Naturalization Service and, later, its successor, Immigration and Customs Enforcement (ICE), targeted egregious violators and deported illegal workers— but levied few significant civil or criminal penalties against employers. When larger organizations were involved, the fines tended to be so minimal that they were not really considered a “serious” compliance issue. The regulatory calculus surrounding worksite enforcement changed radically following the September 11, 2001, terrorist attacks. This precipitated creation of the U.S. Department of Homeland Security (DHS) and led to substantially increased funding for worksite enforcement and border security. 5 Later, the Bush Administration’s support for comprehensive immigration reform created such a hostile public environment against undocumented workers that worksite enforcement, coupled with enhanced border security, were seen as essential prerequisites to any meaningful dialogue on how to fix the country’s broken immigration system. The result was an unprecedented number of public enforcement actions by the Bush Administration that focused primarily on rounding up illegal workers, not penalizing their employers. 6 The Obama Administration has pursued a different approach toward worksite enforcement and expanded its efforts beyond Form I-9 compliance to include H-1B fraud, 7 wage and hour complaints, compliance with the Public Access File requirements of the H-1B program,8 overall immigration fraud, and other areas where legal immigration and employment issues may intersect. As DHS Secretary Janet Napolitano noted, “DHS is focused on smart, tough and effective enforcement of the laws we currently have.” 9

The Vulnerability of Healthcare Employers to Worksite Enforcement Actions

The healthcare industry is not immune from regulatory scrutiny. Given the size and diversity of its workforce and increased union activity, the likelihood that healthcare employers will become targets for worksite enforcement actions seems apparent. This means that healthcare organizations need to identify the critical components of immigration compliance and then develop and incorporate more vigorous policies and procedures into their overall risk management program. Form I-9 completion and retention is the primary legal responsibility for most employers. Healthcare employers should have a uniform written policy for Form I-9 completion using only the form’s latest edition. 10 Such a policy is important to ensure that the organization not only confirms that all new employees are authorized to work, but also avoids discrimination claims that can arise when different Form I-9 completion procedures are used. 11 Under IRCA, an organization must retain its Form I-9 documentation for at least three years or one year following the employee’s termination—whichever is longer—and must make these forms available for inspection if requested by the DOL, DHS, or U.S. Office of the Special Counsel. An employer’s failure to properly complete and retain a Form I-9 provides the same basis for serious civil or criminal liability as if the form was never completed at all.

Under IRCA, an employer cannot use the Form I-9 process to screen candidates for employment. If a healthcare employer does not want to hire foreign nationals who require immigration sponsorship or have limited employment authorization, should it develop an employment application and interview process that will identify these candidates from the outset. 12 It should also implement an immigration employment policy which, among other things, defines the circumstances in which it will sponsor foreign nationals, if any. This policy should also make clear that the organization’s immigration sponsorship does not waive its employment at-will policies, guarantee success, or prohibit the organization from withdrawing its sponsorship for any reason or no reason at all. Such explicit language is particularly important in light of a decision like the Tenth Circuit’s ruling in DerKevorkian v. Lionbridge Technologies, Inc., 13 which held that an employer may have a fiduciary obligation to sponsor a foreign national in the absence of a specific policy. Proper completion of the Form I-9 process does not end an employer’s legal responsibility. Under IRCA, an employer who acquires “actual or constructive knowledge” that an employee does not have employment authorization can be subject to civil or criminal penalties. Such actual or constructive knowledge can arise in a variety of circumstances. For example, an employer would have reason to question the status of an employee who claims to be a permanent resident on his Form I-9—but then asks his manager for immigration sponsorship. Similarly, an organization that has information from a background check that contradicts the status claimed in the Form I-9 would also have constructive knowledge that the employee might be undocumented. Another common situation that might support a finding of constructive knowledge is the employer’s receipt of a “no-match” letter from the Social Security Administration (SSA). Prior to 2007, the SSA sent these letters to notify employers that the names and Social Security numbers (SSN) of certain employees did not match what the SSA had in its system. To ICE, an employer who fails to resolve this discrepancy has constructive knowledge that the subject employee(s) might be undocumented. 14 To the SSA, by contrast, these letters are simply correction requests issued to reduce the suspense fund and properly credit tax payments to the right employee. In this regard, the SSA neither has the authority to penalize employers that supply incorrect SSN information nor those that fail to respond to a no-match letter. While the SSA cannot share its no-match information with DHS under current law, the SSA can provide no-match information to the Internal Revenue Service, which does have the authority to investigate, audit, and ultimately fine the employer. 15 In 2007, the Bush Administration published a “safe harbor” rule that purported to establish a government-sanctioned procedure that employers could follow if they received a no-match letter. Those that followed this rule would receive safe harbor from criminal prosecution and protections against having constructive knowledge that an employee was not authorized to work. The rule was quickly challenged in federal court, which enjoined its implementation. 16 As part of this challenge, the SSA also voluntarily halted the issuance of new no-match letters until the litigation had concluded. On October 7, 2009, DHS rescinded its controversial no-match rule.17 ICE, however, still considers an employer’s receipt of and failure to address a no-match letter to be evidence of the knowing employment of an undocumented worker. With the rescission of the safe harbor rule, healthcare employers should be ready to receive new no-match letters from the SSA. Thus, they should have a policy in place for handling them as part of their overall immigration risk management practices. Of course, any employer who concludes that an employee does not have employment authorization must terminate that employee.

State Immigration Laws: The New Frontier

The failure of comprehensive immigration reform in August 2007 left the impression that the federal government was politically unable to deal with America’s immigration issues. Moreover, this legislative paralysis occurred as the 2008 presidential campaign was heating up and aspiring contenders lined up to demonstrate political toughness by proposing more rigorous measures addressing unlawful immigration. Colorado, the home of 2008 presidential candidate Representative Tom Tancredo (R), passed the first state legislation, which became effective on January 1, 2007. This law required all employers to sign a state affidavit verifying that their employees had work authorization and mandated that all state contractors use E-Verify, the federal government’s employment verification system. 18 Arizona, the home of Senator John McCain, the eventual Republican candidate for president, and former Arizona Governor and now DHS Secretary Janet Napolitano (D), promptly followed Colorado’s lead when it enacted even more stringent legislation in July 2007.19 Effective January 1, 2008, this law not only made it illegal to knowingly hire an undocumented worker, it also required all Arizona employers to utilize E-Verify or risk loss of their business license. 20 Colorado and Arizona initiated a growing trend of state legislation directed at the employment of undocumented workers. The June 2009 report of the National Council of State Legislatures found that forty-four states had passed 144 laws and 115 resolutions affecting foreign nationals and immigration. 21 While some see this as a positive step in controlling unauthorized employment, it has become a nightmare for employers who now must deal with a dizzying patchwork of federal and state laws and often conflicting compliance requirements. For larger healthcare organizations operating in multi-state arenas and varying jurisdictions, it simply ups the ante on ensuring compliance not only with federal immigration laws—but also with whatever laws now are imposed by individual states.

Immigration Risk Management: Best Practices

While the Obama Administration has shifted away from controversial worksite raids, it has made it clear that it intends to hold employers accountable for immigration law compliance. To emphasize this point, ICE issued more than 650 Notices of Inspection in July 2009 to employers in a wide range of industries suspected of Form I-9 and other serious worksite violations. 22 As the pressure for comprehensive immigration reform builds, the key to a more unified approach, especially in this difficult economy, remains strong worksite enforcement that penalizes employers who violate the law and employ undocumented workers. As a result, it is critically important for all employers in the healthcare industry to re-double their efforts and adopt policies that promote legal compliance and facilitate risk management. Healthcare employers looking for “best practices” may find assistance in the DHS’ ICE Mutual Agreement between Government and Employers (IMAGE) program. 23 Originally proposed in 2007, the IMAGE program has not attracted a large number of registrants, in large part because of its burdensome requirements. However, IMAGE does offer a set of “best hiring practices” that can serve as a model for developing policies and procedures that will better prevent potential worksite violations. 24 Not all best practices may be realistic for every employer. Nevertheless, the list provides a useful reference for organizations seeking to enhance their compliance efforts. It thus makes sense to review them in some detail.

E-Verify

ICE recommends that employers use the E-Verify program for all new hires. E-Verify allows registered users to better confirm the identity and employment authorization of new employees by running selected Form I-9 information through the DHS and SSA databases. Under federal law, it is a voluntary program, except for certain vendors who receive solicitations or contract awards under the Federal Acquisition Regulations. 25 Several states, however, require either employers or state contractors to use E-Verify.26 Based on recent pronouncements, it is clear that the Obama Administration is considering support for legislation that mandates that employers use E-Verify as a means of facilitating comprehensive immigration reform. Thus, employers in the healthcare industry should take a careful look at E-Verify so that they will be prepared to implement it in 2010 if necessary.

Form I-9 Training

ICE recommends that employers train all employees involved in the Form I-9 process and ensure that only trained employees participate in this process. The training should include the Form I-9 completion process, detection of fraudulent documents, and any other topics that relate to an employer’s particular circumstances.

ICE also recommends that employers provide annual updates on this training.

Form I-9 Audits

ICE recommends that employers conduct periodic Form I-9 audits and arrange for an annual audit by an external auditing firm or a specially trained employee not otherwise involved in the Form I-9 process.

Self-Reporting Procedure

ICE recommends that employers establish a self-reporting procedure for informing ICE of any violations, along with an employee tip line to report activity relating to the possible employment of undocumented workers.

No-Match Letter Process

ICE believes that there is a strong correlation between a no-match letter and the employment of an undocumented worker. For this reason, ICE recommends that all employers establish a procedure for responding to these letters.

Contractors/Subcontractors

ICE recommends that organizations establish a process for ensuring that all contractors and subcontractors adhere to procedures that protect against the employment of undocumented workers. This has become an important component of any compliance program since Wal-Mart was fined $11 million in 2007 for using cleaning contractors that employed undocumented workers. 27 It is also important to protect employers from unwitting violations of the L-1B and H-1B Reform Acts. 28

Unlawful Discrimination

IRCA prohibits unlawful discrimination in the Form I-9 process. ICE recommends that employers establish and maintain safeguards against unlawful discrimination when completing and maintaining Form I-9 documentation. This can consist of clear policies and procedures that define how the Form I-9 process must be handled, together with training on how to avoid not only unlawful discrimination, but also unfair immigration-related employment practices in the Form I-9 completion process.

The DHS IMAGE program is not for every organization. Indeed, we do not recommend it unless an organization has had a history of immigration-related compliance problems. DHS best practices do, however, provide useful recommendations for all organizations that are interested in controlling potential immigration violations as an element of their overall risk management program.

Risk managers should review these practices and others that might better fit their organizations, and use them as a resource for developing strong policies that ensure legal compliance, promote consistency, and prevent fraud in the temporary worker and permanent resident processes. 29 We advocate developing a comprehensive immigration policy that not only addresses recruitment, sponsorship, and termination of foreign national employees, but also recognizes that immigration compliance has become an important component of risk management. Implementing such a strong, comprehensive immigration policy will go a long way toward reducing the possibility of significant organizational liability.

Mr. Groban is a member of Epstein Becker & Green PC (EBG) and the chair of its Immigration Law Group (ILG). He has been selected as one of the Best Lawyers in America for Immigration by his peers, as a New York Super Lawyer for Immigration by the New York Super Lawyers-Metro Edition magazine 2009, and as a “Leader in the Immigration Field” by the editors of Chambers USA 2009. Mr. Groban has more than twenty-five years of experience advising clients on how to employ foreign nationals and develop appropriate risk management policies, as well as representing them in worksite enforcement and other immigration-related civil and criminal litigation. Prior to joining EBG, Mr. Groban served as a special assistant U.S. attorney in the United States Attorney’s Office for the Southern District of New York from 1976-81, and handled a variety of civil, criminal, immigration, and Nazi War Criminal cases at both the trial and appellate levels. Mr. Groban received a Special Achievement Award from the Executive Office of the United States Attorneys for his sustained superior performance in the trial and subsequent appeals of Bell v. Wolfish, 441 U.S. 520 (1979).

Mr. Chichoni chairs EBG’s South Region Immigration Practice and practices U.S. and global immigration law. He has represented a vast number of corporate and individual clients throughout his legal career, ranging from premier U.S. healthcare organizations to Fortune 100 and Fortune 500 companies. He currently serves as immigration counsel to several major healthcare organizations including two of the largest children’s hospitals in the United States. He also regularly serves as lead counsel for immigration and employment verification issues during ICE audits, large acquisitions, mergers, and corporate reorganizations. Mr. Chichoni is a frequent author, legal presenter, and lecturer.

Mr. Strasser is a senior counsel in the ILG at EBG and practices out of the firm’s New York office. Mr. Strasser advises clients on complicated issues regarding nonimmigrant work visas and permanent resident applications, obtaining visas at foreign consulates and securing work permits for employment outside the United States. He counsels clients on many types of compliance matters, such as Form I-9 documentation, Labor Condition Application requirements, and Export Control Regulations (e.g., BIS, ITAR, OFAC). Mr. Strasser has served as a member of the Immigration and International Law Committees of the Association of the Bar of the City of New York and currently serves as the Acting President of the Central Jersey Shore Chapter of the Federal Bar Association. Mr. Strasser served as a law clerk for the U.S. Attorney’s Office for the Eastern District of New York, where he worked in the General Crimes Unit and contributed research to Dividing Lines: The Politics of Immigration Control in America by Professor Daniel Tichenor of Rutgers University. He has lectured at seminars in New Jersey, New York, and Puerto Rico on the use of technology in immigration law.

1 Bureau of Labor Statistics, see www.bls.gov/oco/cg/cgs035.htm.

2 The Form I-9 is the form that employers must use to verify the identity and authorization to work of all new employees. Employers who fail to complete the Form I-9 properly are subject to civil and criminal penalties. 8 U.S.C. § 1324a.

3 Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6, 1986) (codified at 8 U.S.C.

§ 1324a).

4 See www.uscis.gov/propub/ProPubVAP.jsp?dockey=2b289cf41dd6b70a61a0 78a9fbfbc379. In addition to the Form I-9 requirement, IRCA also increased protections for workers by prohibiting discrimination on the basis of an employee’s or prospective employee’s citizenship or national origin.

5 The DHS now includes United States Citizenship and Immigration Services (USCIS), United States Customs and Border Protection (CBP), and United States Immigration and Customs Enforcement (ICE). The actions of these three agencies were previously administered by the Immigration and Naturalization Service, formerly an arm of the United States Department of Justice.

6 In December 2006, for example, ICE agents raided the operations of Swift & Co. in six states, resulting in the arrest of 1,297 illegal workers. No criminal charges or civil penalties were ever levied against Swift & Co. In 2008, a union official and human resources employee of Swift & Co. were convicted of harboring illegal aliens. See www.ice.gov/pi/nr/0808/080808desmoines.htm.

7 The H-1B is a nonimmigrant (temporary) visa classification that allows employers to hire foreign nationals in professional specialty occupations. A September 2008 study by the USCIS found that approximately 25% of the cases reviewed contained an error or material misrepresentation. See USCIS, H-1B Benefit Fraud & Compliance Assessment, Sept. 2008, available at www.uscis.gov/files/nativedocuments/H-1B_BFCA_20sep08.pdf. As a result, the USCIS has escalated its investigations of employers filing H-1B petitions.

8 Employers who file an H-1B petition so that they can hire a foreign national employee must maintain a Public Access File, which contains pertinent documents from the H-1B process for public inspection on twenty-four hours notice. See 8 U.S.C. § 1182(n)((1).

9 Testimony of Secretary Napolitano before the Senate Judiciary Committee, “Oversight of the Department of Homeland Security,” May 6, 2009, available at www.dhs.gov/ynews/testimony/testimony_1241706742872.shtm.

10 The current Form I-9 has a revision date of August 7, 2009, and is available at www.uscis.gov/i-9.

11 Discrimination claims under IRCA can take many forms. They can be based on the fact that the employer implements the Form I-9 process differently for different employees. They can also result when an employer asks an employee to produce specific documents, or more or different documents, than IRCA allows.

12 This policy should also identify applicants who are “protected” under IRCA and who thus cannot be refused employment on the ground that their employment authorization is temporary, such as asylees and refugees. See 8 U.S.C. § 1324a. Acceptable pre-employment questions include: “Are you authorized to work in the United states without restriction?” and “Do you now or will you in the future require immigration sponsorship?”

13 No-07-1125, 2008 WL 5077720 (10^th Cir. Dec. 3, 2008).

14 This is not the position taken by the SSA. It issues no-match letters so that it can properly credit Social Security taxes to the proper employee’s account. At present, the SSA maintains a suspense fund with more than $300 billion in 17 unaccounted tax payments. It costs the SSA to administer this suspense fund and deprives the actual employee of rightful tax payments. The SSA began issuing no-match letters solely as an effort to resolve these problems. Indeed, the typical letter indicates that it is not and should not be construed to be evidence that the subject employees are not authorized to work.

15 The IRS can fine employers $50 for each W-2 Form filed with an incorrect SSN. The maximum an employer can be fined is $250,000 per year, or $100,000 per year for smaller employers with gross receipts of less than $5 million. If the IRS determines that these failures resulted from an employer’s intentional disregard of the information-reporting requirements, the penalty is $100 per return or 10% of the amount to be reported correctly, with no annual limit. IRS can also institute its own criminal investigation. See 26 C.F.R. § 31.

16 American Fed. of Labor v. Chertoff, 552 F. Supp. 2d 999 (N.D. Cal. 2007).

17 See 74 Fed. Reg. 51447 (Oct. 7, 2009).

18 Colorado House Bill 1343; Colorado Rev. Stat. Art. 8-17.5-101,102.

19 Arizona House Bill 2279, available at www.azleg.gov/legtext/48leg/1r/bills/ hb2779c.pdf.

20 The constitutionality of the Arizona legislation was upheld against a constitutional challenge by the Ninth Circuit in Chicanos Por la Causa, Inc. v. Napolitano, 544 F. 3d 976 (9^th Cir. 2008), petition for cert. filed, 78 U.S.L.W. 3065 (U.S. July 24, 2009)(No. 09-115).

21 See www.ncsl.org/Default.aspx?TabID=756&tabs=951,119,851#951.

22 See www.ice.gov/pi/nr/0907/090701washington.htm.

23 As part of IMAGE, ICE, and USCIS will provide education and training on proper hiring procedures, fraudulent document detection, anti-discrimination procedures, and use of the E-Verify employment eligibility verification program. Voluntary participation in IMAGE also gives ICE unprecedented access to an employer’s hiring and compliance procedures. See www.ice.gov/partners/opaimage/index.htm.

24 See www.ice.gov/partners/opaimage/index.htm.

25 Exec. Order No. 13,465, 73 Fed. Reg. 67651-01 (Nov. 14, 2008).

26 See Arizona House Bill 2279 and Colorado House Bill 1343.

27 Wal-Mart settled the action without charges being filed and was subject to an unpublished consent order. See www.foxnews.com/story/ 0,2933,150846,00.html.

28 The H-1B Reform Act prohibits certain contractors from placing H-1B workers on the client’s premises if this would displace an American worker. Consolidated Appropriations Act, 2005, Subtitle B, § 421-430, “H-1B Visa Reform Act of 2004.” Pub L. No. 108-156, 117 Stat. 1944 (Dec. 3, 2003). To demonstrate non-displacement, the contractor must first secure a statement from the client that no U.S. worker will be displaced by the H-1B assignment. Id. Many managers close with these contractors sign these statements without any idea of why they are requested or what they mean. The L-1B Reform Act prohibits contractors from placing L-1B workers at a client’s site unless they will use the specialized knowledge of their employer’s operations that was the basis for visa issuance. Consolidated Appropriations Act, 2005, Subtitle B, § 411-417, “L-1 Visa (Intracompany Transferee) Reform Act of 2004.” Id. In our experience, most employers do not have effective risk management policies in place to identify and prevent possible violations of these laws. See www.uscis.gov/ propub/ProPubVAP.jsp?dockey=2b289cf41dd6b70a61a078a9fbfbc379.

29 The DOL, USCIS, and Congress all suspect that there is extensive fraud in the H-1B and labor certification process, the latter of which being the first step in most permanent resident applications. U.S. Citizenship and Immigration Services, H-1B Fraud & Compliance Assessment, Sept. 2008, available at www.uscis.gov/ files/nativedocuments/H-1B_BFCA_20sep08.pdf. To help identify and address this unlawful activity, the DOL has recently developed and implemented the “ICERT” process that requires all labor condition applications (H-1B) and labor certification applications (permanent residence) to be filed online. ICERT allows the DOL to verify the existence of the employer and any variations in job descriptions that might be used improperly to enhance the prospects for approval. See http://icert.doleta.gov/. The USCIS recently started conducting unannounced on-site investigations of H-1B employers to confirm that the information supplied by the employer is accurate. Violators can be fined, debarred from the H-1B and labor certification programs, or prosecuted criminally for knowing and willful violations. These additional enforcement developments also counsel in favor of developing strong risk management policies in the immigration area.

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DOL to Issue Final H-2A Regulation: Important Changes Ahead

Hector Chichoni — Thu, 11 Feb 2010 15:54:33 -0500

The Labor Department is releasing a final rule that reverses many of changes made under the Bush administration to the H-2A agricultural guest worker program. The rule is scheduled for publication in the Feb. 12 Federal Register. It appears the final rule keeps in place almost all of the changes that were included in the proposed rule issued in September 2009. It makes several key changes, including reversing the attestation-based system created by the 2008 H-2A rule and returning to the adverse-effect wage rate as the basis for determining the required wage rate for H-2A workers. The biggest change from the proposed to the final rule is that forestry workers, such as tree planters, will not be included as H-2A eligible workers although they would have been covered under the proposed rule. There is no cap for the H-2A program.

President Obama Backs Department of Labor Misclassification Fight

Richard Tuschman — Tue, 09 Feb 2010 19:43:31 -0500

The following EBG client alert, authored by my partner Evan Spelfogel, should be of interest to all Florida employers.

On February 1, 2010, President Barack Obama released his federal budget for the coming fiscal year, including $117 billion for the United States Department of Labor, of which $25 million was set aside expressly to help the DOL combat employee misclassification. This includes, specifically, identifying and litigating against employers that categorize workers as independent contractors when, in fact, they are employees, and that classify as exempt from overtime those employees who do not meet the requirements of the White Collar Exemptions under Part 541 of the Wage and Hour Regulations.

The DOL will use a large portion of these funds to hire hundreds of investigators and other enforcement staff. The new Department of Labor Solicitor, Patricia Smith, will pursue a “Misclassification Initiative” to obtain, for misclassified employees, the wages, overtime pay, unemployment insurance benefits, social security contributions and health, welfare and pension benefits available to employees, but not to independent contractors.

Smith, it should be noted, was most recently Commissioner of Labor in New York State. In that capacity, she publicly identified misclassification as one of the most serious workplace problems today, and created a dedicated taskforce to attack the problem, encompassing representatives from a number of state government agencies, including labor, tax, unemployment insurance, workers compensation and labor relations.

Now, more than ever, employers must have programs in place to insure the validity of their classification of workers as independent contractors or as exempt from overtime, and must have a clear strategy for handling government audits and enforcement actions.

Employers should engage in proactive self-audits, in order to seek out and eliminate vulnerability. Companies should take the appropriate first steps to limit liability and protect their businesses, without raising “red flags.” Employers should check their IRS Form 1099s to identify those they have been paying as independent contractors. They should then audit their outside contractor and employee job descriptions, actual job duties and functions, and the degree of day-to-day control exerted by management, to determine who, in fact, is an independent contractor and who is an employee, and whether the employees are exempt or non-exempt under applicable wage and hour tests.

Employers should pay particular attention to matching duties and functions with the requirements for exemption under the managerial/supervisory, administrative and professional white-collar exemptions. Getting the company’s house in order before the government’s “knock on the door” may save time, attorneys fees and the actual and intangible cost of administrative and civil litigation.

The consequences of worker misclassification, both as to independent contractors and overtime exempt employees, may be severe. Individual, class and collective actions concerning workers’ status are proliferating. Companies are facing larger judgments, ramifications and costs, as one case sparks another. The expense to employers can be staggering, including back-pay with interest, liquidated damages, stock options awarded at years-ago, lower prices and legal fees. Misclassification cases are lucrative for plaintiffs’ lawyers, particularly when they can assert class and collective claims and work on a contingent-fee basis. The announcement of additional funds made available to the DOL under the president’s budget and the confirmation of Patricia Smith as Solicitor of the Department of Labor should provide a wake-up call to employers.

For additional information, please see Mr. Spelfogel’s published article titled: “Misclassification: The Profusion, The Cost, and the Remedy” (NYSBA L&E Newsletter, Vol. 34, No. 1 at page 7, Spring 2009).

The Obama Administration's Agenda for the DOL -- What Employers Need to Know

Richard Tuschman — Wed, 27 Jan 2010 18:02:02 -0500

The following post, authored by my partner Betsy Johnson, should be of interest to all Florida employers.

President Obama just celebrated his first year in office and his Administration has been busy! Employers of all sizes are starting to see the effects of the Obama Administration’s workplace agenda; especially at the Department of Labor (DOL). The watchword for all employers in the wage/hour arena for 2010 is “compliance.” The DOL is slated to receive a substantial budget increase this year and it is going on a hiring spree to increase the number of investigators and enforcement personnel.

The DOL’s agenda includes increased audit and enforcement proceedings related to “off the clock” work and the misclassification of employees as “exempt” under the Fair Labor Standards Act (FLSA). In addition, the DOL (in cooperation with the IRS) will focus its audit and enforcement proceeding on employers who misclassify individuals as independent contractors. Now, more than ever, employers must have programs in place to ensure compliance with the myriad of wage/hour laws and regulations, and implement a clear strategy for handling government audits and enforcement actions. While the thought of conducting a comprehensive payroll practices compliance audit can be daunting, employers can efficiently conduct “spot” audits of particular areas where they may be vulnerable.

As an initial matter, employers should determine who will conduct the audits. Utilizing internal resources such as the Human Resources and/or Payroll Departments and/or the company’s General Counsel will help keep the costs down. However, using internal resources may not guarantee that the results will be protected by the attorney-client privilege should the company become involved in litigation regarding the subject matter of the audit. As such, employers may wish to seek assistance of outside counsel to conduct the audit and analyze the results.

The purpose of these “spot” audits is to: 1) identify areas of non-compliance; 2) identify policies, procedures and/or practices that can be improved; 3) develop a plan for improvement; and 4) implement the plan. The areas where most employers are vulnerable to government actions and employee claims in the wage/hour area are:

• Overtime calculation and payment

• Off the clock work

• “Donning and doffing” issues

• Classification of employees (exempt v. non-exempt)

• Time keeping

• Recordkeeping

• Proper classification of independent contractors

In planning a “spot” audit, employers should determine: 1) the scope and depth of the audit; 2) what data needs to be collected; 3) what documents need to be reviewed; 4) which managers should be interviewed to obtain relevant information; and 5) whether the employees should be surveyed for relevant information. On a cautionary note, if the employer believes there may be too many “skeletons in the closet” that may be exposed in an audit, consideration should be given to retaining outside counsel to assist in the audit so that the process and the results can be protected by the attorney-client privilege.

Finally, employers must decide what to do with the results of the audit. Some things to consider are: 1) who will be apprised of the results and how (written or verbal); 2) will the person who conducted the audit make recommendations regarding problem areas; 3) what, if anything, is going to be done about any problems; 4) how should any changes be implemented (a “spin doctor” may be needed); and 5) how is the employer going to address employee questions and challenges.

In the short-term, the exercise of conducting internal audits may be viewed as a distraction from an employer’s business purpose. In the long run, however, getting the company’s “house in order” before a government agency knocks on the door will save time, attorneys’ fees and the intangible costs of being embroiled in administrative or civil litigation. Remember the old adage: “An ounce of prevention is worth a pound of cure.”

Understanding Florida's Workers' Compensation Retaliation Statute

Richard Tuschman — Tue, 26 Jan 2010 10:27:41 -0500

A plaintiff who alleges that his employer terminated his employment in retaliation for filing a workers’ compensation claim is entitled to proceed to trial, according to a recent decision by the Third District Court of Appeals, Ortega v. Engineering Systems Technology, Inc. (Fla. 3d DCA, January 20, 2010). The Ortega case provides a good opportunity to explore the contours of section 440.205, Florida’s workers’ compensation retaliation statute.

The plaintiff in the case, Ricardo Ortega, fell off a ladder on October 31, 2006 while working for his employer, Engineering Systems Technology, Inc. Ortega broke his wrist, and the employer’s workers’ compensation carrier was notified. Ortega was put in a “no work” status while he received therapy. Three months after his accident, on February 1, 2007, Ortega’s doctor authorized him to engage in the “limited use of [his] injured hand” with a twenty pound weight restriction. On the same day, Ortega asked his boss, Enrique Borja, if he could return to work. Borja told Ortega the company had no light duty for him and to come back when he had no limitations. On April 12, 2007, Ortega’s doctor released him to work without restrictions. Four days, later, Borja told him, “I don’t have work for you… I removed you from my staff two months ago.” But around the same time, Borja also stated that he would take Ortega back when he was sufficiently recovered.

Borja sued Engineering Systems under section 440.205, Florida Statutes, which provides:

Coercion of employees.--No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.

The trial court granted summary judgment to Engineering Systems, and Ortega appealed.

On appeal, the Third DCA ruled that there were genuine disputes of fact as to whether Ortega was fired, or whether he failed to request a return to duty; and whether, if Ortega was fired, it was in retaliation for his pursuit of workers’ compensation benefits. The court rejected the employer’s argument that Ortega’s failure to provide his employer with a Division of Workers’ Compensation Form DWC-4, releasing him to return to work, provides a complete defense to a retaliation claim under section 440.205.

So what can Florida employers learn from the Ortega decision? Perhaps the most important lesson is to do what Engineering Systems and Borja apparently did not do: adopt a clear policy authorizing the termination of employees who are unable to work for a period of time (e.g. three months), and apply the policy decisively and consistently. (For employers covered by the FMLA, make sure the policy is compliant with this statute.) It seems likely that Engineering Systems did not have a clear policy governing such situations. It is clear that Borja was not decisive in terminating Ortega or in consistently delivering his message to Ortega.

Suppose, however, that Borja had told Ortega on February 1, 2007 that in accordance with company policy, his employment was terminated because he had been unable to perform his job for three months. In Pericich v. Climatrol, Inc., 523 So. 2d 684, 685 (Fla. 3d DCA 1988), the Third District Court of Appeals held that section 440.205:

only prohibits the retaliatory discharge of an employee “by reason of” the filing of a workers’ compensation claim. The statute cannot be interpreted to prohibit the discharge of an employee for any reason once the employee has filed or pursued a workers' compensation claim. Employers still retain their traditional right to terminate employees for legitimate business reasons, such as unsatisfactory job performance or excessive absenteeism.

And in Edwards. v. Niles Sales & Service, Inc., 439 F. Supp. 2d 1202, 1230 (S.D. Fla. 2002), a federal court, citing Pericich, held that “[w]ithout question, firing an employee because the employee has been unable to work for approximately three months constitutes a legitimate business decision[.]

So, Borja could have lawfully terminated Ortega on February 1, 2007. If the company’s policy provided for termination after a three-month period of incapacity, and Borja terminated Ortega decisively in accordance with this policy, it is likely that the Third DCA would have upheld the trial court’s summary judgment order.

The point here is that section 440.205 does not give an employee a right to be restored to his job when he returns from leave from a work-related injury. Nor does it give an employee a right to work in a light-duty capacity. The statute only gives an employee a right to be free from retaliation because he has filed a workers' compensation claim. These issues can become blurred, as they were in Ortega. But by adopting a clear policy stating that an employee will be terminated after a period of inability to work (for any reason), and applying that policy decisively, employers can avoid costly litigation under section 440.205.

Non-Disabled Applicant Can Go To Trial Based on Company's Pre-Employment Medical Inquiry, Says Eleventh Circuit

Richard Tuschman — Fri, 15 Jan 2010 10:30:40 -0500

A non-disabled applicant for employment can proceed to trial under the Americans with Disabilities Act based on a company’s unlawful pre-employment medical inquiry, according to a recent decision by the Eleventh Circuit Court of Appeals, Harrison v. Benchmark Electronics Huntsville, Inc. (11^th Cir. January 11, 2010).

The case arose when John Harrison was working as a temporary employee for Aerotek, which assigned Harrison to work at Benchmark Electronics Huntsville, Inc. (BEHI). Harrison has epilepsy and takes barbiturates to control his condition. Harrison applied for permanent employment at BEHI and consented to a drug test. When his drug test came back positive, his supervisor learned about it and was in the room when Harrison explained his epileptic condition to the medical review officer (MRO). Soon thereafter, his supervisor decided not to extend an offer to Harrison and asked Aerotek not to return Harrison to BEHI.

Harrison filed a charge with the EEOC, which determined that Harrison was not disabled. Harrison then sued BEHI under the ADA, claiming that BEHI engaged in an unlawful pre-employment medical inquiry under the ADA. The district court granted summary judgment to BEHI. The court ruled that, even assuming Harrison had a right to sue based on a pre-employment medical inquiry, BEHI was entitled to ask whether he had a legitimate use for such medication.

A panel of the Eleventh Circuit Court of Appeals reversed the district court’s decision. At the pre-offer stage, the court noted, an employer may not conduct a medical examination or make inquiries of a job applicant as to whether the applicant is an individual with a disability, or as to the nature or severity of such disability. An employer may only inquire into the ability of an applicant to perform job-related functions. Joining several other circuit courts of appeal, the court held that this prohibition is not limited to disabled applicants. “Allowing non-disabled applicants to sue will enhance and enforce Congress’s prohibition,” the court reasoned. “Moreover, a contrary reading would vitiate [the Act’s] effectiveness.” Quoting an earlier Tenth Circuit decision, the court wrote that “[i]t makes little sense to require an [applicant] to demonstrate that he has a disability to prevent his [potential] employer from inquiring as to whether or not he has [one].”

The court then addressed the merits of Harrison’s claim. First, the court noted that the ADA recognizes an exemption to the pre-employment inquiry rule for drug tests. Not only are drug tests permissible at the pre-offer stage, but so are follow-up questions in response to a positive drug test, such as: “What medications have you taken that might have resulted in this positive test result?” However, disability-related questions are still prohibited.

The court ruled that under the circumstances, i.e. because Harrison’s supervisor told him that his drug test was positive, because Harrison disclosed his prescription, and because the supervisor was present in the room when Harrison explained his medical condition to the MRO, “a reasonable jury could infer that [the supervisor’s] presence in the room was an intentional attempt likely to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries.” The court also ruled that a reasonable jury could infer that the supervisor based his decision not to hire Harrison on information gleaned from an improper medical inquiry.

For employers in the Eleventh Circuit, the Harrison case offers a couple of valuable lessons. First, employers must not make prohibited pre-employment medical inquiries of any applicant, including applicants that are apparently or obviously not disabled. Harrison makes clear that any applicant is a potential plaintiff under the ADA.

Second, employers must be extremely careful with the handling of information obtained from drug tests. As Harrison illustrates, there is a fine and arguably fuzzy line between permissible follow-up questions following a positive drug test, and impermissible disability-related questions. To avoid crossing this line, employers may wish to consider administering drug tests only after making a conditional offer of employment to applicants. Once a conditional job offer is made, the employer may ask disability-related questions as long as this is done for all entering employees in that job category.

What Florida's Ban on Marital Status Discrimination Means (and Doesn't Mean)

Richard Tuschman — Thu, 07 Jan 2010 11:16:54 -0500

The Florida Civil Rights Act prohibits marital status discrimination in employment. i.e. discrimination based on the state of being married, single, divorced or separated. What it does not do is prohibit discrimination based on the identity or actions of one's spouse.

That's a pretty simple concept, and it's been the clearly established law in Florida since 2000, when the Florida Supreme Court issued its opinion in Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1155 (Fla. 2000).

But that didn't prevent the Miami-Dade County Equal Opportunity Board recently from ruling in favor of Hilda Fish, whose employment with Industrial Affiliates, Ltd. was terminated because she married Mr. Fish, one of the operating partners of the business. The MDEOB ruled in favor of Ms. Fish even though the employer had replaced her with another married woman, which seemingly proves that it had no problem with the fact that Ms. Fish was married.

Fortunately for the employer, the Third District Court of Appeals corrected the error, holding that the MDEOB's decision "represents a clear departure from the essential requirements of the law resulting in a miscarriage of justice and is therefore quashed." In a terse decision, the court noted that the lower court, an appellate panel from the Miami-Dade Circuit Court, had denied review "for reasons unknown." It makes you wonder, did the MDEOB and the circuit court panel read Donato?

In any event, the lesson of the Fish decision for Florida employers is clear. It is perfectly legal to have an anti-nepotism policy that prohibits the employment of relatives or spouses of employees, and to take action against spouses whose employment runs afoul of this policy. As Donato makes clear, discriminating against an employee because of the actions or identity of the employee's spouse is legal. It is only the state of being married, single, divorced or separated that Florida's ban on marital status discrimination protects against.

What "At-Will" Employment Means (and Doesn't Mean)

Richard Tuschman — Mon, 21 Dec 2009 18:58:19 -0500

In Florida, absent an employment contract specifying that an employee will be employed for a certain period of time, the employment relationship is "at-will." This means, generally speaking, that the employee can be fired, or can resign, at any time, for any reason. The employer does not have to have "good cause" to terminate an at-will employee.

There are numerous statutory exceptions to this general rule. It is unlawful to terminate an employee because of the employee's race, national origin, sex, religion, disability, age, or other discriminatory reasons specifically prohibited by statute. It is also unlawful to terminate an employee because the employee has engaged in protected activity. Under federal law, this includes engaging in concerted activity with other employees, or complaining about violations of the Fair Labor Standards Act (which governs minimum wage and overtime pay). Under Florida law, protected activity includes an employee's objection to, or refusal to participate in, a violation of a law, rule or regulation by the employer, or the employee's filing a valid worker's compensation claim. There are other statutory exceptions to the at-will employment rule. This blog post is not intended to cover them all. Suffice it to say that absent one of these statutory exceptions, employers in Florida are free to terminate at-will employees without having their decisions second-guessed by a court of law.

But what about compensation, commissions and other benefits that the at-will employee earned prior to termination? Can an employer refuse to pay the terminated employee on the grounds that the employment relationship was at-will?

The answer is no, and a recent decision by the Second District Court of Appeals illustrates this point. In Patwary v. Evana Petroleum Corp., the plaintiff, Shaifur Patwary, sold a hotel to Evana Petroleum Corporation and its owners ("EPC"), but reached an agreement under which Patwary would manage the hotel for EPC in exchange for a fifty percent share of the hotel's net profits through the pendency of the agreement, and a fifty percent share of the hotel's net proceeds in the event of a sale. When EPC sold the hotel, it terminated Patwary without notice and refused to pay him the proceeds and profits he accrued under the agreement. Patwary sued for breach of contract.

At the trial court level, EPC filed a motion for summary judgment, arguing Patwary's claim was barred because it concerned a breach of contract action brought under an agreement without a definite duration. The trial court agreed and dismissed Patwary's claim.

On appeal, the Second DCA reversed the trial court's decision, holding that "[a]n employer's right to terminate an at-will contract does not entitle the employer to renounce compensation or other benefits that vest while the contract is in force. Quoting the Fourth DCA's decision in J.R.D. Mgmt. Corp. v. Dulin, 883 So. 2d 314, 317 (Fla. 4th DCA 2004), the court noted that it is "only an action for breach of employment that is barred when the contract of employment is terminable at will; other contractual provisions may not be affected by the at-will employment rule."

For Florida employers, the lesson of Patwary is clear: Despite the fact an employee was employed on at-will basis, the employer must still pay the employee the compensation and other benefits that he earned prior to his termination. Now, what "earned" means in the case of an employee who gets paid, in whole or in part, by bonuses or commissions, is another issue. But that's the subject of a future post....

Admission of "No Reasonable Cause" Determination Reversible Error, Rules 4th DCA

Richard Tuschman — Sat, 19 Dec 2009 14:49:11 -0500

A trial court's decision to admit into evidence a Broward County Civil Rights Division "no reasonable cause" determination was an abuse of discretion and constituted reversible error, according to a recent decision by the Fourth District Court of Appeals.

The plaintiff in the case, Cameshia Byrd, alleged that her employer, BT Foods, Inc., a Wendy's franchisee, terminated her employment because she was HIV positive. She alleged violations of the Florida Omnibus AIDS Act, section 760.50(3)(b), Florida Statutes, and the Florida Civil Rights
Act, section 760.10(1)(a). BT Foods asserted that it took Byrd off the work schedule because she failed to produce a doctor's note following an absence from work, and that Byrd never produced a doctor's note and never returned to work.

At trial, over the objection of Byrd's attorney, the trial court admitted into evidence a "no reasonable cause" determination that had been issued by the Broward County Civil Rights Division. The BCCRD had determined that BT foods "discharged the Charging Party because she did not produce a note from from her doctor's office or hospital and not because of her medical condition." Defense counsel highlighted this fact during closing argument, and the jury returned a verdict for BT Foods.

On appeal, the Fourth DCA noted that although the federal public records exception to the hearsay rule included factual findings resulting from an investigation, Florida's public records exception was narrower. On this basis alone, the determination letter might have been inadmissible. But Byrd's attorney did not assert hearsay as the basis for his objection at trial.

Instead, Byrd's attorney argued that the probative value of the letters was substantially outweighed by the danger of unfair prejudice. Rejecting a per se rule on this point, the court held that the admissibility of reasonable cause determinations is an issue best left to the discretion of the trial judge. Nevertheless, in this instance, the Fourth DCA ruled that the trial court abused its discretion in admitting the determination letter "because the conclusory nature of the BCCRD’s determination letter left it with little probative value when compared to the substantial prejudicial effect it may have had on the jury’s ultimate assessment of Byrd’s credibility and the pivotal determination as to whether Byrd had indeed provided a doctor’s note to her employer."

The Byrd decision highlights the relatively unimportant role that agency determinations typically play at trial. Whether an agency rules there is "reasonable cause" or "no reasonable cause" (or, in the EEOC's case, that it is "unable to conclude" there was a violation of the statutes), the determination is likely to be inadmissible anyway. Most courts seem to realize that agency investigations of discrimination complaints are often cursory and their determinations unreliable. The limited probative value of these determinations is likely to be outweighed by their prejudicial effect on jurors, who tend to assume, erroneously, that an agency has conducted a thorough investigation before issuing its determination. Lawyers and judges usually know better. And in all fairness to the agencies, given the number of discrimination charges filed every year, a thorough investigation of every charge is simply not possible.

Quicksand for Employers: A Seminar on Employment Law Developments in the Obama Administration

Richard Tuschman — Wed, 18 Nov 2009 09:43:33 -0500

Please join us for this informative seminar. Details below.

Quicksand for Employers:

Labor, Employment and Immigration Law Developments in the First Year of the Obama Administration

WHEN

Friday, December 4, 2009

Registration: 8:00 AM

Program

8:30 AM - 10:30 AM

WHERE

Miami City Club

Wachovia Financial Center

200 South Biscayne Blvd., 55th Floor

Miami, Florida

Presented by:

Hector A. Chichoni, Esq., EpsteinBeckerGreen

Kevin E. Vance, Esq., EpsteinBeckerGreen

Mark J. Beutler, Esq., EpsteinBeckerGreen

Join us for a panel discussion by immigration attorney Hector A. Chichoni and labor and employment attorneys Kevin E. Vance and Mark J. Beutler, all of EpsteinBeckerGreen's Miami office. These panelists will discuss developments in immigration law and labor and employment law during the first year of the Obama Administration.

Part I: Immigration law

A new administration and downturn in the economy have contributed to an ever- changing and challenging year in immigration.

Mr. Chichoni will discuss the following immigration topics:

The Obama Administration's immigration initiatives and programs
The latest on the Department of Labor's strategy in PERM cases in this economy
The trends in U.S. Citizenship and Immigration Services adjudication
An H-1B cap analysis and Strategies for Fiscal Year 2011
Recent federal court cases and administrative decisions
Responses to U.S. Citizenship and Immigration Services audits and Immigration and Customs Enforcement investigations
The impact of continued state legislation
Prospects for immigration legislation in the coming year
Global immigration trends

Part II: Labor and Employment Law

Since the Obama Administration came into power, we have seen Congress introduce several employment bills that, if passed, would have a significant effect on business nationwide. Also, the Department of Labor and the EEOC have already become more active under the Obama Administration.

Additionally, unions heavily supported Barack Obama in his presidential bid, and much of their support hinged on his backing of union-friendly initiatives, most especially the controversial Employee Free Choice Act (EFCA). A political tug-of-war has left the National Labor Relations Board (NLRB) - the agency that referees labor disputes - deadlocked and unable to resolve some of the thorniest clashes between unions and management. Since January 2008, the NLRB has had three vacancies and just two members - one from each party. As a consequence, the Board has spent nearly two years putting off dozens of cases. President Obama recently appointed three new members who, when confirmed, are expected to forge a new labor policy more hostile to the interests of employers.

Messrs. Vance and Beutler will discuss the following labor and employment law topics:

The Lilly Ledbetter Fair Pay Act, which has already been passed and which will breathe new life into previously time-barred employment discrimination claims
The Employment nondiscrimination Act, which seeks to include sexual orientation in the federal anti-discrimination law
The Balancing Act of 2009 and similar bills that would mandate various forms of paid leave
Increased activity and shifting priorities within the Department of Labor in several areas including workplace ergonomics and other employee health and safety initiatives, wage and hour enforcement, and whistleblower protections
New appointments to the NLRB and their potential impact on the NLRB's agenda
The potential reversal of employer-friendly NLRB decisions
The EFCA, including the current political stand-off and the likelihood of a compromise; card check, fast-track union campaigns; mandatory arbitration of employer-union impasse on first contracts; and more stringent penalty provisions
Recent pro-union executive orders affecting federal contractors

There will be a short question and answer session following the discussion.

View Event Summary and Biographies

Register for Event

If you have any questions, please contact Anneliese Garcia at
305-579-3200 or email agarcia@ebglaw.com

About EBG: Founded in 1973, EpsteinBeckerGreen is a law firm with approximately 350 lawyers practicing in offices in Atlanta, Boston, Chicago, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford and Washington D.C. The Firm’s size, diversity, and as a founding member of the International Lawyers Network (ILN), allow its attorneys to address the needs of both small entrepreneurial ventures and large multinational corporations on a worldwide basis. EpsteinBeckerGreen continues to build and expand its capabilities as a law firm focused on five core practices: Business Law, Health Care and Life Sciences, Labor and Employment, Litigation and Real Estate. For more information on EpsteinBeckerGreen, please visit www.ebglaw.com. For more than three decades, the EpsteinBeckerGreen seminar series has introduced senior executives, general counsel and human resources professionals to cutting-edge issues in nearly every area of business touched by law.

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USCIS Launches Informational Video on the Systematic Alien Verification for Entitlements (SAVE) Program

Hector Chichoni — Mon, 09 Nov 2009 12:54:45 -0500

U.S. Citizenship and Immigration Services (USCIS) today posted an

informational video on its Web site that provides an overview of the agency’s Systematic Alien Verification for Entitlements (SAVE) program. The new video describes the immigration status verification process and explains how federal, state, and local benefit-granting agencies can apply to participate in the program. USCIS encourages agencies to view the video to determine if the SAVE program is appropriate for their immigration status verification needs. The SAVE program is an intergovernmental initiative that assists benefit-granting agencies in determining an applicant’s immigration status. The program ensures that only entitled applicants receive federal, state or local public benefits and licenses. Additionally, SAVE offers eligible agencies an efficient, secure and cost-effective method of immigration status verification. Specifically, the program checks the applicant’s information against millions of federal database records. Currently, more than 300 agencies are enrolled in the SAVE program. The video, along with additional information about the SAVE program, is available at www.uscis.gov/SAVE or by submitting a request to SAVE.help@dhs.gov (write “SAVE Informational Video” in the subject line.

Department of Homeland Security Issues: Final Rule Rescinding "No-Match" Regulation

Hector Chichoni — Mon, 12 Oct 2009 15:54:12 -0500

On October 6, 2009, the Department of Homeland Security (DHS) announced that it will issue a final rule, to be published in the Federal Register on October 7, 2009, rescinding the embattled “No-Match” regulation. As we have previously reported, DHS is of the opinion that the receipt of a “No-Match” letter provided constructive knowledge to an employer that an employee may not be authorized to work. This rule would have created a “safe-harbor” procedure for employers to respond to “No-Match” letters, thus clearing employers from any knowing hire liability for that worker.

DHS first announced its intention to rescind the “No-Match” rule on August 19, 2009, through the publication of a proposed rule. This action was the culmination of months-long federal litigation concerning whether or not the rule had been lawfully promulgated and whether or not it was constitutional.

In taking this step, effectively abandoning the litigation, DHS stated as follows: “After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.”

Employers beware, upon publication of the rule we fully expect the Social Security Administration to begin issuing new “No-Match” letters and DHS will still consider the receipt of a “No-Match” letter as an indicator of unauthorized employment. Although there will be no “safe-harbor,” employers should have a plan and procedure in place to address the receipt of a “No-Match” letter. Having a proper plan in place not only helps an employer maintain the integrity of its workforce from an immigration perspective, but also assists an employer in meeting its W-4 reporting requirements with respect to Social Security withholdings.

California Employment Law for Florida Employers

Richard Tuschman — Mon, 05 Oct 2009 11:06:21 -0500

This should be a great seminar. Looking forward to seeing you there.

California Employment Law for
Florida Employers

Monday, November 2, 2009
Lunch & Program 12:00PM - 2:00 PM


Miami City Club
Wachovia Financial Center 200 South Biscayne Boulevard 55th Floor
Miami, FL 33131 ___________________________________________
Presented by: Angel Gomez, III, Esq., EpsteinBeckerGreen

California is home to one of the largest economies in the world, and to one of the world's best-educated and most productive workforces. Many employers find California to be an essential part of their strategic plan, but are not aware of the specifics of the state's evolving employment laws and policies.

We would like to invite you to a special seminar with Angel Gomez, Esq., a member of Epstein Becker & Green situated in the Firm’s Los Angeles office, concentrating in employment law. Mr. Gomez will provide tips for preventing and minimizing liability for companies with employees in California.

The average jury verdict in employment cases is nearly $1.4 million

It is illegal to require female employees to wear skirts

It is illegal to have a "use it or lose it" vacation plan

Terminated employees must be paid in full on their last day

Transvestites are a "protected class" in some cities

Overtime must be paid after 8 hours of work in a day

Pregnant employees may take up to seven months of protected leave

Releases must contain California-specific language

Employees may use one-half of their sick time for family illnesses

California’s new disability discrimination law is broader than the ADA

Co-workers can be personally liable for unlawful harassment

Group insurance premiums may need to be paid indefinitely by the company for someone on workers’ compensation leave

Termination of an employee on workers’ compensation leave is risky and complex – even if the employee has been out for a year or more

There are important exceptions to many of the above

This lunch session is intended for senior personnel management, as well as in-house counsel, whose advice is sought concerning their California operations. We will review the specifics of California employment law that may not be well known outside of California, as well as discuss strategic and long-range issues.

For example, Mr. Gomez will also discuss:

How California juries assess employer termination decisions

How to structure terminations to increase your chance of success in California courts

What is required before a California court will enforce an arbitration agreement

How to avoid having that lawsuit against you decided by a jury

___________________________________________

Mr. Gomez is a graduate of Harvard Law School, and the University of California at Berkeley. He is an experienced speaker and author, including being the management co-author of California Employment Litigation, a widely read treatise on the subject, published by Bancroft-Whitney. He has spoken before such organizations as the National Employment Law Institute, Personnel and Industrial Relations Association, National Employment Law Council, among many others.

In an ever-changing California legal environment, increased knowledge can help you to protect against potentially significant liability and improve your company's overall productivity. Please contact Anneliese Garcia 305.579.3200 or agarcia@ebglaw.com with any questions.

FEE
$30

Please RSVP no later than
Thursday, October 29, 2009

Please respond by clicking one of the buttons below

About Epstein Becker & Green, P.C.

Founded in 1973, EpsteinBeckerGreen is a law firm with approximately 350 lawyers practicing in offices in Atlanta, Boston, Chicago, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford and Washington D.C. The Firm’s size, diversity, and global affiliations allow its attorneys to address the needs of both small entrepreneurial ventures and large multinational corporations on a worldwide basis. EpsteinBeckerGreen continues to build and expand its capabilities as a law firm focused on five core practices: Business Law, Health Care and Life Sciences, Labor and Employment, Litigation and Real Estate. For more information on EpsteinBeckerGreen, please visit www.ebglaw.com. For more than three decades, the EpsteinBeckerGree seminar series has introduced senior executives, general counsel and human resources professionals to cutitng-edge issues in nearly every area of business touched by law.

Having trouble with the link? Simply copy and paste the entire address listed below into your web browser:
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USCIS Announces Extension of Form I-9

Hector Chichoni — Wed, 02 Sep 2009 16:29:29 -0500

The U.S. Citizenship and Immigration Services ("USCIS") announced on August 27, 2009, that the federal Office of Management and Budget has approved an extension of the current Form I-9 to August 31, 2012. As a result, the USCIS has amended the Form I-9 to reflect an updated revision date of August 7, 2009. This revision date appears in the lower right hand corner of the form. The USCIS has indicated that employers may use the Form I-9 with a revision date of either February 2, 2009 (the prior revision date) or August 7, 2009 (the current revision date). The Form I-9 is available at the following web site: www.uscis.gov/i-9.