Category Archives: In The News

95 Million Reasons to Conduct an I-9 Self Audit…Very Carefully

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I am pleased to share my latest post to The SHRM Blog.

In 2009, the Department of Homeland Security (“DHS”) began auditing the I-9 practices of Asplundh Tree Experts Co.  Last month, the Company pled guilty in Pennsylvania federal court to a charge of knowingly employing immigrants without authorization to work in the U.S.  The fine: a record $95 million.

In response, more and more employers are considering self-audits before DHS comes knocking at their doors.   While employers are well-advised to conduct an I-9 self-audit, there are legal minefields that need to be navigated or the self-audit may increase the employer’s potential liability.  Here are but some examples:

  • In the interest of being super compliant, some employers have considered having all employees execute new I-9s.  This is not super compliant, but rather super dangerous.  It raises serious discrimination risks under the Immigration Reform and Control Act (“IRCA”).
  • Other employers have questioned whether the Trump Administration’s Executive Order on DACA workers (Dreamers) requires that employers complete new I-9s for these DACA workers.  The answer is an unequivocal “NO.”
  • Employers cannot select for inspection employees they perceive to be high risk, such as those on visas, or those with “foreign-sounding” last names.  This type of targeted audit raises all but certain liability not only under ICRA but also the employment non-discrimination laws.
  • Inevitably, employers may find that some I-9s are missing.  In these cases, employers should complete new I-9s, dating them on the date in which they are completed.  NEVER back date.
  • In other cases, employers may find I-9s that are incomplete.  In these circumstances, the employer, using a different color ink, should have the document completed (either by the employer and/or the employee, depending on the omission) and, again, the employer should date the change on the date in which it is made.
  • In still other cases, there may be a mistake.  No employer ever should white out anything on the original I-9.  Rather, the employer, in a different color ink, should cross out the incorrect language, substitute the correct language and date same on the date the change is made.
  • The employer should prepare a summary of the scope of the audit, the manner in which it was conducted, and its findings.  But this is another blog for another day.

This blog should not be construed as legal advice.

Florida Employers: Wage and Hour Considerations and Hurricane Irma

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I am pleased to share my latest post to The SHRM Blog.

Just as Texas begins its slow recovery from Hurricane Harvey, Florida braces for Hurricane Irma. So, we must, again, look at wage and hour rules:

  1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed. However, you generally can require that an exempt employee use PTO during a day in which you close.
  2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day. If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time. You also must pay him or her if he or she does any work from home.
  3. There is no legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week. Under the FLSA, they must be paid if you close due to the hurricane for less than full work week and they do any work in the work week, whether it be few or many.
  4. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.
  5. Also, if non-exempt employee works at home, you must pay for all time worked. Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid. Remember, break rules apply to working at home too.
  6. Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.
  7. Thankfully we all know that no employee should be told to put themselves at risk to come to work. Just in case there is a manager who does not know this, you should make sure they do. Thoughts and prayers to our colleagues and their workers in Houston and its surrounding areas.

Guidelines for How Employers Should Respond to DACA Uncertainty

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This column was originally published on Entrepreneur.com on 9/7/17.

Yesterday, the Department of Homeland Security (DHS) ordered the wind down of the program known as the Deferred Action for Childhood Arrivals (“DACA”). In a memorandum issued with the rescission order, the DHS announced how the program will end.

DACA was founded by the Obama Administration in June 2012. DACA allows certain illegal immigrants who entered the country as minors to receive deferred action from deportation and eligibility for a work permit. It is estimated that approximately 800,000 individuals are covered by the program.

The DHS memorandum is clear that all current work permits remain in effect and will not be revoked. However, as of September 5, 2017, USCIS will not accept any new DACA requests.

The DACA program is scheduled to terminate on March 5, 2018 unless Congress saves the program. According to a press release by DHS, the deferral was designed “so Congress can have time to deliver on appropriate legislative solutions.”

What should employers do when they have DACA employees in their workplace? Three critical points:

1. Focus on the workplace issue as apolitically as possible.

Some employers will undoubtedly focus on the political, as is their right. However, if employers want to take a stand without creating polarity in their workforce, they are generally advised to be as apolitical as possible. The message is simple: you stand behind your DACA employees and will do what you reasonably can to support them.

2. Provide employees support but be careful of promises.

You can let employees know what you will be doing, such as writing to your senator or legislator. But be careful not to promise DACA employees that you will protect them no matter what. No one knows what the status of the law will be on March 5, 2018. As sympathetic as you may be, you cannot promise that you will protect these employees if the law is to the contrary.

One thing employers can do is seek work permit extensions to the extent permitted by the DHS Memorandum. While the details of seeking extensions should be discussed with immigration counsel, keep in mind that any such extensions must arrive at the USCIS no later than October 5, 2017.

Again, seeking extensions may slake some of the anxiety of DACA employees. But make clear there are no guarantees so they cannot later claim they relied to their detriment on your actions in not developing a plan B.

3. Don’t push employees to lobby for a legislative solution.

Employees may ask you if there is anything they can do to help their DACA colleagues. You can respond that they can contact their representatives in the Senate and House (mentioning that is what you are doing, if that is case.). But make clear that you are responding to their request and whether they choose to reach out to their representatives is entirely voluntary.

Do not reach out to all employees and encourage them to engage in grassroots advocacy (one way or the other). Not all employees will agree, and your doing so will then turn your workplace into a political battlefield. Plus, there are potential legal risks, to boot!

DHS has promised more detail. Stay tuned.

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

Houston Employers: Wage and Hour Guidance and Hurricane Harvey

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I am pleased to share my latest post to The SHRM Blog.

For Texas employers, particularly in and around Houston, the priority is helping employees and remaining as operational as possible.  Just a reminder of the wage and hour rules that apply to remaining as operational as possible:

  1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed.  However, you generally can require that an exempt employee use PTO during a day in which you close.
  2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day.  If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time.  You also must pay him or her if he or she does any work from home.
  3. There is no legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week.  Under the FLSA, they must be paid if you close due to the hurricane for less than full work week and they do any work in the work week, whether it be few or many. http://www.twc.state.tx.us/news/efte/h_regular_rate_salaried_nx.html
  4. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.
  5. Also, if non-exempt employee works at home, you must pay for all time worked.  Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid.  Remember, break rules apply to working at home too.
  6. Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.
  7. Thankfully we all know that no employee should be told to put themselves at risk to come to work.  Just in case there is a manager who does not know this, you should make sure they do.  Thoughts and prayers to our colleagues and their workers in Houston and its surrounding areas.

 

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP

The Oscars Tragedy and You

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I am pleased to share my latest post to the SHRM blog.

I watched in anticipation Sunday night as the of the best movie of the year was about to be revealed. l was pulling for Fences or Lion so I knew they would not win.

And, then Bonnie and Clyde, also known as Faye Dunaway and Warren Beatty, announced the movie of the year. Beatty looked confused, knowing something was wrong. He showed the card to Dunaway, who blurted out La La Land.

The winning team went on stage and happily accepted the award. But there was background noise. And, soon, the reason became clear.

Not all was la la in La La Land. A mistake had been made. The real winner was announced: Moonlight.

Now, we are not dealing with an amateur production. We are dealing with the Academy Awards. And, a big mistake was made on the biggest award on the biggest night in Hollywood.

What happened:

1. The Academy immediately corrected the mistake.
2. The La La Land team graciously announced the Moonlight winners.
3. The Moonlight winners graciously talked about sharing the stage with the La La Team

Our work lives are not choreographed like the Academy awards. We must respond “in the moment” without cue cards or rehearsals.

And, yes, we make mistakes, too. Most importantly, that includes those who work with us but, in their eyes, for us.

Some delighted in the Academy’s mistake. I delighted in the honesty and grace by which it was handled.

You might want to think about that the next time an employee makes a good faith mistake. Their mistake is a test of your grace.

3 Ways Entrepreneurs Can Protect Employees From Trump’s Immigration Executive Order

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I am pleased to share my latest post to Entrepreneur.

On Friday, President Trump issued an executive order that:

  1. Suspends entry of all refugees to the United States for 120 days;
  2. Bars Syrian refugees indefinitely; and
  3. Blocks entry into the United States for 90 days for citizens of seven predominantly Muslim countries. The countries are: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

Four federal judges have blocked implementation of at least parts of the Executive Order. Even so, it appears the Administration will continue to enforce the Executive Order.

This is not a political but a business blog, so I will not focus on the issue of refugees, but focus solely on what the Executive Order means for employers relative to employees who have green cards or other foreign nationals who are lawfully working for them.

On Sunday, the White House Chief of Staff Reince Priebus said the Executive Order is not intended to apply to green card holders. Even so, it is not clear that this is the President’s position. Nor does it appear consistent with ongoing enforcement actions. Even if the Executive Order does not apply to green card holders, there are other foreign nationals lawfully working in the United States on temporary visas. Among the issues for employers to consider are the following three:

1. You can’t be certain employees who travel will be allowed to return.

Employers should not require (or even permit) employees with green cards or other visas from the seven designated countries to engage in business travel outside of the United States. If an employer requires or permits work-related travel outside of the United States as part of their jobs, at least two bad things may happen.

First, on a strictly business level, these employees may not be allowed to return to provide service to their employers. On a more personal level, these employees may be separated from their families and other loved ones. Caring for employees must go beyond work.

2. Educate affected employees about the risk of personal travel.

Employers cannot prohibit personal travel and you wouldn’t want to anyway. Indeed, a foreign national from one of the seven nations may have the legal right under the Family and Medical Leave Act to return to Iran to care for a parent with a serious health condition.

However, employers should consider talking about the risk of traveling outside the United States for those who hail from the seven countries covered by the Executive Order. But employers need to be careful how this is done. Even if well intended, a “rounding up” of employees from these seven countries to discuss the issue can lead only to greater anxiety and more. Plus, employees not from the seven countries may care about the issue, too.

Consider a communication to all employees. Analogy: if there is a new child care benefit, you would not announce it only to those known to have children.

3. Do you take a position?

We often have heard it said there are two topics we should try to avoid: politics and religion. Well, they are now the elephants in the corporate living room, and I am not sure employers can or should entirely avoid them.

A number of large technology employers have condemned the Executive Order. What should you do? Regardless of your politics or presidential vote, this Executive Order may negatively affect you as an employer. It already has increased anxiety among foreign nationals from the seven-targeted majority-Muslim countries.

At a very minimum, leaders are well advised to make clear that they will do what they reasonably can to protect their employees. An example of this may be, not putting employees at risk by sending them out of the country until this issue is resolved. Do not expect a quick resolution.

Some employers may want to go further and express their personal views. In doing so, employers are best to focus on the Executive Order and not the President who signed. it. Said otherwise, focus on the business issue. Some may conclude silence on the “political” issue is best. Fair enough. But sometimes the sounds of silence echo the loudest.

What Trump’s Immigration Executive Order Means for Employers

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I am pleased to share my  latest article posted to Philadelphia Business Journal.

Last Friday, President Trump issued an executive order that:

  1. Suspends entry of all refugees to the United States for 120 days;
  2. Bars Syrian refugees indefinitely; and
  3. Blocks entry into the United States for 90 days for citizens of seven predominantly Muslim countries. The countries are: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

Four federal judges have blocked implementation of at least parts of the executive order.

Even so, it appears the Trump Administration will continue to back the order, causing questions to arise for employers and what it means for their employees who have green cards or other foreign nationals who are lawfully working for them.

Does the executive order cover individuals with green cards or other foreign nationals with the right to work in the United States?

The answer to this question is unclear. Members of the new administration have said it does not apply to those who hold green cards. But these statements are not law. Plus, even if the executive order does not apply to those with green cards, what about those who hold other visas to work in the United States? Until there is greater certainty, employers should assume the executive order may apply to all employees who are citizens of those seven-designated countries.

Should employers make clear that foreign nationals from the 7-designated countries do not have to travel?

Yes – employers should not require employees who are citizens from those seven affected countries to engage in business travel for them outside of the United States. Why not? We don’t know if they will be able to get back in! Such employees should be assured the absence of such travel will not have adverse impact on their employment status.

What if an employee who is a citizen of one of the seven impacted countries wants to engage in international business travel notwithstanding the executive order?

In these cases, employers may be tempted to say no to protect their employees from the unknown. But the courts have generally rejected “paternalism” as a defense to discrimination and this could be deemed discrimination based on national origin.

In these cases, employers should explain the personal risks the employee is voluntarily undertaking and ask him or her to acknowledge same in writing.

Can employers prohibit personal travel to their homelands by foreign nationals from the 7-designated countries?

This probably is overreaching and could be discriminatory. Is relying on an executive order the scope of which is unclear a valid defense to a national origin discrimination claim? I don’t know the answer and would not want any client to be the test case.

However, employers can and should communicate the risks of personal travel for some. At the same time, we don’t want employees from these countries to feel targeted. The reality is that many already do. So make sure the communication goes to all employees; also, employees not directly affected by the executive order care about their colleagues, too.

What will happen next?

I have no idea. I do know the situation if fluid, and that employers need to communicate with their employees. The level of fear and anxiety that can be found on social media does not remain there. It is in your workplaces, too

This is not legal advice pertaining to specific factual situations.

Mary Tyler Moore and Single Women

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I am pleased to share my post to the SHRM blog regarding the legacy of Mary Tyler Moore.

A lot has been written about the passing of Mary Tyler Moore. Perhaps we did not know at the time how ground breaking the Mary Tyler Moore show was. In retrospect, it is clear to us.

There are so many episodes that dealt with gender equality, including when Mary was paid less because she was a woman and denied opportunities because she was not a man. With a wonderful combination of strength and humor, she leaned in….and prevailed.

But there was something else about Mary Richards that is getting less attention: the fact that she was single. No, it was not because of a death or divorce but rather a choice.

I have spoken with many single women about workplace issues. A blog on this issue was slated for later this year but the timing unfortunately feels right now.

Single woman have shared with me:

1. They have been asked why they never married. Are married women (or men) asked why they choose to marry? The often unspoken assumption: it was a result, not a choice.

2. They sometimes feel excluded from discussion on managing work and life. While many single people have children, many others don’t. Our respect for life outside of work cannot be restricted to those of either gender who are married with children.

3. They at times feel marginalized when invitations to employer events include spouses, partners or significant others. I know some men who feel the same way. Why not just “adult guest?”

Yes, some state laws prohibit discrimination based on marital status. And, I don’t believe many women (or men) are denied jobs or opportunities because of their single status.

In fact, sometimes they may be given extra work, particularly if they don’t have children. The conscious thought process or implicit assumption: they don’t need to go home.

The dialogue about intimate relations has become refreshingly more inclusive. Yet, we sometimes fails to recognize those who are not in them.

Do single men face the same issues? I am not sure.

I think single men are often seen as having made that choice. Well, this is a choice more and more women are making, too.

So when we remember Mary Richards, we can remember her “spunk.” Lou Grant, I love spunk!

And, we should remember what a pioneer she was for women generally. But I suspect she holds a special place for single women everywhere.

In our workplaces, let’s continue to challenge ourselves to be more inclusive. It’s the least we owe Mary!

How to Prevent Presidential Debates From Becoming Disruptive Workplace Debates

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I am pleased to share my latest article posted to Entrepreneur.com.

We just saw the first Presidential debate. No matter what your view, I think we all can agree it was contentious. The feelings of the campaign in general, and the debates in particular, will undeniably leak into workplaces. What do you do? Or better yet, what don’t you do?

To help guide you, here are eight questions and answers to help handle political workplace discussions.

1. Don’t employees have a First Amendment right to say what they want politically?
No. The First Amendment applies only to restrictions imposed by the government. Private sector employees have no First Amendment rights in the workplace. If you are an entrepreneur, you can prohibit employees from talking politics without worrying about the First Amendment.

There is one exception — keep in mind some state constitutions, such as California, apply (or may apply) to private sector employees. So a ban in California, for example, is asking for trouble.

2. Do employees have any rights to express their political views in the workplace, independent of any constitutional right?
Yes, employees covered by the National Labor Relations Act (NLRA) probably would have the right to share their views, including wearing buttons, if the political statement relates to the terms and conditions of employment.

Let me give you two examples — Vote for Clinton so there is more generous paid parental leave or vote for Trump so that religious rights in the workplace are respected. Keep in mind that supervisors and managers, as defined by the NLRA, are not protected by the NLRA.

3. Can employers discriminate based on message? That is, favor one political view over another?
This may come as a surprise to many but, unlike race, sex or religion, one’s political affiliation is not a protected group under federal law and almost all state laws. There are exceptions, such as in the District of Columbia and under a few other local ordinances.

But just because something may be lawful does not make it right. It would be foolish, even if not illegal, to discriminate based on political view point. Do you really want to alienate a large percentage of your employees and customers?

4. What if what is said in the workplace is discriminatory?
What if someone makes a statement hostile to Mexicans or disparages Evangelical Christians? Employers have more than a right to respond to discriminatory messages in the workplace. They have a legal obligation to do so. Employers can brook bias of no kind — that includes during this election season.

5. Aren’t we better off just banning all political speech, to the extent we can, to avoid disruptions?
No. It’s simply not practical. And, it will get even less so as we approach the election. It also is not desirable. Ban political talk and political opponents will agree on one thing — you, as the employer, have gone too far.

6. Aren’t there reasonable restrictions that you can and/or should impose to minimize disruption and/or risk antagonizing customers?
Yes, you probably could have a rule that anyone who interacts with the public not wear a political button or otherwise convey a political message of any kind. I say “probably” and not “absolutely” because the National Labor Relations Board (NLRB) that interprets the NLRA continues to limit what employer can do. But entrepreneurs need to balance the potential legal risk against the business risk of doing nothing.

7. But what if there are disruptions in the workplace?
Some disruptions are inevitable. You absolutely can respond to the disruptions. You are not paying employees to be as dysfunctional as Congress. But focus on the disruption as opposed to the content of the disruption — unless what is said is discriminatory. There should be both the reality and the appearance of being even handed.

8. Can you as a leader express your own views?
Yes, there is no question that you can share your views. The question is, how and when? Remember, your power is based on your influence, and your influence may be tarnished if you do not temper your political views.

Better to support a candidate than bash the other side. And, at all costs, avoid the “I don’t know how anyone could vote for [fill in the blank].” You are effectively calling those who disagree with you idiots. Not exactly the key to engagement.

Political HR Tale in Wacky World of Election 2016

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I am pleased to share my latest post to The SHRM Blog regarding the upcoming election and the workplace.

In less than two months, the Presidential election will take place. You are thinking about that when you see your receptionist wearing a button for her political candidate.

You ask her to remove it because you have customers of diverse political views. She says “NO,” promising to file a case with the Supreme Court because you are violating her First Amendment rights. Note to SCOTUS: we hope you enjoy her as much as we do.

Well, First Amendment restrictions do not apply to private employers. The First Amendment restricts only government action. So you nicely tell your employee either the button goes or she goes. She walks off the job. Note to file: discuss reserve for litigation.

You continue down the hallway and you see two employees wearing buttons for opposing candidates:

-A Clinton supporter’s button talks about need for paid parental leave.

-A Trump supporter’s button talks about religious liberty and Obamacare.

Thinking of the First Amendment, you tell both employees: off with the buttons. And the NLRB responds: off with your heads.

If political buttons relate to terms and conditions of employment, they may be protected under the NLRB. I won’t say anything negative about the NLRB, even though the NLRB seems fond of disparagement as they attack non-disparagement clauses!

You go to your office and you hear two employees fighting over the election. Neither can believe their colleague would consider voting for the other candidate. Time to play referee.

Just focus on the disruptions without regard to the content. The NLRB probably would allow employers to focus on the disruption, if substantial, even if the issues discussed were work-related. I say probably because, as you well know, this NLRB has defined employee rights very broadly and management rights narrowly…

You go back to your office and you close the door. The phone rings: a manager asks if he allows an employee to solicit for one candidate during his working time, does he have to grant equal access to another employee soliciting for the other candidate during her working time?

You reach into your pocket and take a pill. Yes, it was lawfully prescribed after the last holiday party.

Neither federal nor most state or local laws consider political affiliation a protected group. But forget the law: you don’t want to alienate a sizable portion of your workers, customers or business partners.

But allowing solicitation uniformly is not the answer to this question. Your uniform exception to your no-solicitation rule during the employee’s working time now allows employees to solicit uniformly for unions during their working time. Oh what a web the law weaves.

After you talk with the manager, she asks you, as a friend: whom do you favor? You think of changing the topic to something less controversial—your sex life—but the thought is just that.

Temperatures are hot and they will get only hotter. When the election is over, you need to work together. People often feel attacks on candidates as attacks on them.

So, respond only if you have a strong relationship with the person that is beyond merely professional and you are confident you both can survive knowing you may vote differently. Don’t be too confident.

You breathe deeply and begin to relax until you hear an employee making comments about Muslims or Mexicans. This is not a political, but a factual statement. Do you need to pick a side?

Yes, the law. Brook no bias by either side. You must respond proactively to disparaging comments about Muslims, Mexicans, Evangelical Christians, white men or any “protected group.” To ignore is to condone if you are in a position of power.

You call a friend and share what so many of us feel–you cannot wait for the election to be over. Your friend assures that you have the holidays to look forward to—a time for peace and tranquility.

Your friend clearly either is not an HR professional or just plain crazy if she thinks the holidays are the most wonderful time of year at work. Every holiday decoration designed to increase inclusion is deemed a micro-aggression by someone. Stay tuned for more on holiday headaches in December!).

But until then we must survive. And, we will—with a little help from Gloria Gaynor.