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

In The News, ,

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.

Warning About Implicit Bias Awareness Tests

General

Please read this important article I wrote for SHRM on how implicit bias is a real problem and so are the tests that purport to measure it.

We all know that not all bias is conscious. Some bias is unconscious—often, referred to as implicit bias.

This means that we may be engaging in bias without even knowing we are doing so. This is most likely to occur when we make snap judgments.

For example, most of us have read about, or at least heard of, studies that demonstrate the name on an application affects the likelihood a candidate will be selected for an interview. Men do better than women and candidates with names that are often associated with people of color are less likely to be selected than those with names that are not. In other words, Kesha will get fewer interviews than Karen, and Karen fewer than Kevin.

To help bring implicit bias to conscious awareness, some employers are using tests designed to measure implicit bias. One popular example is the Harvard Implicit Awareness Test (“IAT”).

However, these tests are far from conclusive. There is substantial debate in the psychological and neurological communities about whether the Harvard IAT or other tests truly measure implicit bias.

Further, these tests create evidence that may be used against employers. Let me give you an example.

Your executive team members take implicit awareness tests. Cindy is your Chief Information Officer, and the results of Cindy’s implicit awareness test suggests an implicit bias in favor of women.

Cindy promotes Susan over Zachary. Zachary’s counsel argues that the results of Cindy’s test help establish gender bias.

Are the test results admissible at trial? The law is not yet settled but the answer may be “yes.”

What do you do if admissible? Hire an expert to discredit the test you administered?

At a very minimum, you need to be aware of this risk. My raising this legal risk is not hypothetical..

Better yet, consider ways to get at implicit bias without creating admissions that can ravage you in litigation. The options are as vast as your creativity.

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

The Risks of Bias Testing

General, , ,

I am pleased to share my article from SHRM’s HR Magazine posted on August 25, 2017. 

When hiring and promoting people, HR professionals and managers know that certain factors—such as gender, race, disability status and age—cannot be considered in the decision-making process under the law. What they may not understand, however, is that, without any conscious awareness, they actually may be considering these precise factors.

For example, a white male manager may know that gender and race lawfully cannot be considered in a hiring situation. But he, as a white man, may favor a white male candidate over a woman of color based on how “comfortable” he is with each of them, even though he has no idea that his comfort level may relate to race and/or gender.

Unconscious bias, often referred to as implicit bias, is bias that we are unaware of. It happens automatically and without any conscious thought process and is triggered by our brain making snap judgments formed, at least in part, as a result of the messages that we received growing up, as well as our own experiences, culture, mass media and other influences.

But how can we address a form of bias that we are unaware we have?

The first step is to acknowledge that bias exists and that no one is immune from it. Good people can—and do—make biased decisions. That’s one reason a training approach with a punitive tone won’t work well and, in fact, is likely to be counterproductive.

Implicit bias is both personal, in that the various stereotypes that employees have internalized can vary based on their experiences, and ubiquitous, in that we all harbor unconscious assumptions; it’s part of being human.

That doesn’t mean we should sugarcoat the issue—but it’s important to understand the dynamics driving unconscious bias and to think about how to best raise the topic so that individuals will be motivated to learn more about it and how it influences their decision-making. Raising awareness through bias testing, however, is a risky approach.

Understand the Evidence

You can start by familiarizing yourself with the scientific evidence demonstrating the existence of unconscious bias. In a 2002 study by the University of Chicago Booth School of Business, “Are Emily and Brendan More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination,” researchers sent recruiters virtually identical resumes that differed in only one way: the applicants’ names.

They found that individuals who submitted resumes with “white-sounding” names received 50 percent more callbacks than those whose monikers were more likely to be associated with black applicants. In other words, all else being equal, Karen will fare far better in her job search than Keisha will.

Another classic study, 1997’s “Orchestrating Impartiality: The Impact of ‘Blind’ Auditions on Female Musicians” by the National Bureau of Economic Research, involves an orchestra that wanted to increase gender diversity but was having trouble finding women with the requisite talent.

After the orchestra had no luck with the traditional audition process, individuals were asked to perform behind a curtain. Magic! As a result of this step alone, women were 50 percent more likely to proceed to the final round of auditions.
In both cases, conscious and unconscious bias were likely at work. But as the latter example—in which the orchestra stated a genuine desire to increase gender diversity—shows, it is often people’s implicit prejudices that steer them toward partial outcomes.

 

Know the Basis for the Bias

What is the basis for implicit bias? Part of the answer may lie in neurology and social psychology.
Stereotypes that are perpetuated and reinforced by messages we receive through the media, societal cues or our individual experiences can become embedded in the amygdala region of the brain, which is activated when we make snap judgments based on pictures, images or names that can correlate with a characteristic such as race, gender or age. As a result, we make unconscious associations, which can be either positive or negative, based on these factors.
 
Understand the Risks Of Testing

There are a number of tests that individuals can take to become more conscious of their unconscious biases. One is the Harvard Implicit Awareness Test (IAT), which measures implicit bias in 14 areas, including gender, race, religion, age and sexual orientation.

The test shows images and words associated with a color, gender, religion, etc. Generally, the slower the test-taker is in pairing certain words or images with a specific group, the more likely he or she has an implicit bias, according to the assessment.

A report published in the European Review of Social Psychology in 2007, “Pervasiveness and Correlates of Implicit Attitudes and Stereotypes,” found that:

  • 68 percent of respondents had a more favorable automatic association with people who are white than they did with people of color.

  • 76 percent made a greater connection between the words “men” and “careers” and “women” and “families” than they did with the converse concepts (“men” and “families,” and “women” and “careers”).
But while the IAT and other such tests may be instructive for individuals, these assessments are far from conclusive. For example, there is considerable debate among psychologists about their reliability. (A discussion on this topic appears in “IAT: Fad or Fabulous?” in the July/August 2008 issue of the American Psychological Association’s Monitor on Psychology.) Moreover, the tests may create legal risk because the results are discoverable in litigation.

Consider the following example: Greg chose Jim over Jane for a promotion. Soon afterward, Greg is deposed in a claim by Jane alleging sex discrimination. The plaintiff’s attorney initiates the following line of questioning:

“You took an implicit awareness test?” the attorney asks.

“Yes,” Greg replies.

“Did you have any implicit bias in terms of gender?” the lawyer continues.

“I was surprised to learn that I favor men over women,” Greg says.

 “And you picked Jim over Jane. Is that correct?” At this point, the plaintiff’s attorney is thinking about using the money her firm wins in this case to purchase a summer home.

“Yes, that is correct, too,” Greg says.

“But you admit both were qualified?” she asks.

“Yes, but …” Greg trails off.

Now Greg’s company would need to bring in an expert to discredit the test that was used, and even then the jury could find the test to be more valid than some psychologists may find it to be.

So think carefully before reflexively using implicit awareness tests. At a very minimum, consider their potential usefulness as well as the legal perils that they may create.

Fortunately, there are less-risky steps employers can take that are helpful in identifying and addressing unconscious bias. I will cover them in next month’s issue.

Florida Employers: Wage and Hour Considerations and Hurricane Irma

In The News, , , ,

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

In The News, , ,

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

In The News, , ,

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 Privilege of Talking with Your Lawyer

General, ,

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

Almost every HR professional deals with an attorney.  With strong relationships, sometimes you will refer to the lawyer as your lawyer. Not so fast. Here are 6 recommendations to keep in mind when you deal with “the” lawyer:

  1. The lawyer engaged by the Company represents the Company and not you. So be honest about work issues but be careful about issues that may be adverse to the Company. If you are thinking of exercising your legal right to bring a claim, do not give the Company’s lawyer a heads up! He or she, ethically, cannot retain your confidence.
  2. The attorney-client relationship covers only communications in which you ask for advice on behalf of the Company or the attorney gives advice to the Company through you.  It does not cover, for example, an offensive “joke” that you tell the Company’s lawyer in confidence.  By the way, don’t tell the “jokes.” Full stop.
  3. While only the Company can waive the attorney-client privilege, steps HR takes may be used to argue the Company has indeed waived the privilege. So, do not tell others, except those within the Company with a need to know (narrowly defined and fact specific) about the legal advice provided.
  4. Label e-mails where you seek or respond to legal advice “privileged and confidential” or “attorney-client privileged.” Avoid labels that may imply such but still can be less than fun to address in litigation, such as “Help! I am going to jail.” You should win on the privilege issue but who wants to win an issue that can be avoided.
  5. Do not put “privileged and confidential” or “attorney-client privileged” on business documents. That does not shield it from discovery. It only makes the label, where you legitimately have it, questionable. If everything is privileged, then nothing is.
  6. If you have a conversation with the Company’s counsel and a manager during which you make a business decision, that decision was made in a privileged call. Unless you want to risk having to disclose what you discussed, including the risks of the business decision, have a separate business conversation with the manager and without the lawyer.

These are but a few issues to consider when dealing with the Company’s counsel. More to common in a future blog!

Oh, by the law: this is not legal advice :-).

An Alternative to Voluntary Retirement Programs

General, , ,

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

Under federal and state laws (most or all), employers can have voluntary retirement programs. Of course, there is much litigation on whether and when an employee’s decision to retire is truly voluntary.

However, even if there is no pressure placed on an employee, think about the message that the program sends and/or likely will be heard as sending: we want to get rid of mature employees. This places “age in the air” and can be used to argue age bias when an older employee later is discharged or laid off (even where there is no bias).

Here’s the argument: you tried to incent me to leave; when that failed, you removed me involuntarily. And, how will a jury react?

Jurors have only one common denominator: everyone on the jury hopes they have gift of longevity; that is, that they, too, get older. So there may be sympathy and empathy for the mature worker.

There is an alternative, and safer, approach: a voluntary severance program that is offered to all or groups of employees regardless of age. Older employees with more seniority usually will be eligible for more by virtue of their seniority but the program is not aimed at them.

But what if someone applies and you want to say “No?” No material worries (absent saying “No” in a discriminatory way).

If a voluntary severance plan is properly drafted and distributed in accordance with ERISA, an employer should be able not only to exclude from consideration certain groups, positions etc., but also to reserve the absolute right to say “No” to any particular employee in a non-excluded position who applies for an exit package if the employer’s concludes that the employee’s departure is not in the employer’s best interests.

So this year, the 50th Anniversary of the ADEA, I encourage you to think beyond whether a voluntary retirement program is lawful. I ask you to think about the message it sends.

It is not only a legal issue. It is also a cultural one. What message do you want to send to workers with the experience you need to compete?

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

 

Think You Don’t Have a Boys’ Club? Take This Test and Be Sure.

General, , ,

I am pleased to share my latest post to Entrepreneur.

We read a lot about “boys’ clubs.” They are power circles of men, mostly white, who control, formally or informally, organizations or silos within them.

The gender demographics of the senior leadership team may be relevant but is not dispositive as to whether a boys’ club exists. I have seen organizations with senior leadership teams lacking in gender diversity that are not, in my opinion, run by a boys’ clubs. Conversely, I have seen organizations where the numbers at the top look good in terms of gender diversity but a core boys’ clubs calls the shots.

So, how do you know if you have a boys’ club? Of course, there is no test. So, I have created one. Warning from this lawyer — write your answers on a piece of paper and then throw it away. Don’t want your self-evaluation to be used against you in litigation by a plaintiffs’ lawyer.

Now, as for each of the five questions:

1. If you generally agree, answer A
2. If you are not sure, answer B
3. If you generally disagree, answer C

1. We don’t have a boys’ club.

Almost everyone knows that boys’ clubs exist. But many believe that they exist only at the employer next store. Certitude is a good thing. But, on this issue, a little doubt is a good thing. Indeed, if you are sure that you don’t have a boys’ club, you probably do. So give yourself:

– 2 points for A
– 0 points for B and C

2. We don’t need a system for raises or promotions. Merit will prevail.

Often the gender gap at the top is because women don’t have the opportunities they need to get there. Absence of meaningful opportunities also contributes to the gender pay gap. No one system works for all. But “no system” never works.

No system often leads to what the EEOC calls “people like me” bias. Those in charge of opportunities give them to those just like them — often other men. So some vehicle to measure equal access to opportunity is essential. Merit will prevail but only if there is equal access to opportunity. Time to score it:

– 2 points for A
– 1 points for B
– 0 points for C

3. More than a few informal meetings are held in bars.

Social inclusion is a form of business inclusion. Information is shared, strategies are developed and relationships formed and/or cemented. Of course, many men don’t relish business in bars. And, there are women who do. Bu the local watering hole is often the club house for the boys’ club. The same is true of the golf course. Let’s score it:

– 2 points for A
– 0 points for B and C

4. The pay gap is due to employer practices and employee choices.

There is no doubt that there is a gender pay gap. Those who doubt it sound as credible as men who deny the existence of labor pains because they never have experienced them. But the gender gap is not due solely to employer practices. If you step out of the game to be the primary caregiver, when you step back in, you will make less. And, women are still more likely than men to be primary caregivers. As for points, the pattern you may have predicted no longer holds.

– Subtract 1 point if you picked A (you have thought about the issue.)
– No points for B or C, but if you picked C, you may see bias in certain cases where it does not exist.

5. Women mentoring women is essential to shutting down the club.

No. And here’s why. There are fewer women at the top so women mentoring women will deprive women disproportionately of access to the top. The burden of gender equality cannot be put entirely on women (particularly since men and women alike benefit from gender equality). The benefits to cross-gender matching are significant in terms of what each gender can impart and learn.

– 2 points for A
– 0 points for B
– Subtract one point if you picked C (again, you have thought about this issue).

Now, add up all of your points, subtracting points where you have earned them.

If you have five points or more, you may have a boys’ club in your organization but don’t see it. If you have fewer than 5 points, you still may have a boys’ club somewhere in your organization, but you are primed to help dismantle it.

Batman: Sometimes You Can’t Get Rid of a Bomb

I was sad about the death of Adam West. I was a bit surprised at how sad. Adam West Batman

I am not alone. All over the weekend, social media—as well as print media and TV—was “all things Batman.”

For many of us, and our parents, Adam West was not “a”
batman but “the” one and only Batman that we all watched
together.

Of course, there is the pure joy of nostalgia. Who can forget Batman doing the Batusi: https://www.youtube.com/watch?v=JiiuvtzK3SQ

And, there were brilliant lines. Remember: Some days you can’t get rid of a bomb: https://www.youtube.com/watch?v=IIPZROBiNik

For the record, Batman did get rid of the bomb without hurting anyone. Sometimes
getting rid of the bomb just takes a little extra effort.

And, the villains were purr-fectly delightful. Who didn’t have a favorite villain among
Cat Woman,  the Joker, the Penguin and the Riddler?

The good “guys” were good and the bad “guys” were bad. And with bat magic, the good “guys” always won.

And, now we find out that Adam West and Burt Ward remained friends for 50 years. So the dynamic duo was not just on the reel but real.

It was a comedic fantasy in a time of both great turmoil and greater innocence. Once again, we find ourselves in a time of great turmoil. What we are missing is the “bat”
innocence.

Bam!