With the recent inauguration of a newly elected U.S. House of Representatives and a shift in the composition of the U.S. Senate, many people expected that a more employer-friendly environment would immediately fall into place. But the reality is that federal agencies are gearing up for even more aggressive regulatory enforcement. Armed with increased budgets and more investigators, agencies such as the EEOC, Department of Labor, National Labor Relations Board and Immigration and Customs Enforcement have ramped up – and are amped up – to issue radical new rules which tilt the playing field against employers.
During this one-hour EmployerLINC webinar, labor and employment attorneys Charlie Plumb and Paul Ross discuss what employers can expect in 2011 … and what steps they need to take when the Feds come knocking regarding wage & hour investigations, EEOC/discrimination claims, immigration and I-9 audits, and union organizing.
(Originally broadcast January 25, 2011)
» Download the webinar presentation materials
Helpful Links Referenced during Webinar
- Department of Labor: “We Can Help”
- Form I-9 Inspection Overview (PDF download)
- Handbook for Employers: Instructions for Completing Form I-9 (PDF download)
The following are answers to some of the most frequently asked questions during the webinar. Please note that these answers are being provided for information of clients and friends of McAfee & Taft and do not provide legal advice and are not intended to create a lawyer-client relationship. In addition, we are not able to provide answers to fact-specific inquiries. Readers should not act upon the information provided below without seeking professional counsel.
Department of Labor (DOL)
Q: If an employee provides some, but not all, of the care for a grandchild on a daily basis, does that employee qualify for FMLA leave based on in loco parentis status?
A: While this is a fact-specific inquiry, it is certainly possible for a grandparent to act in loco parentis and qualify for rights under the FMLA.
Q: When determining if an employee is qualified for FMLA leave due to a family member’s illness, what can you legally ask? If a doctor simply states in writing that a family member is “critically ill,” does that constitute eligibility for that employee, or can we request further information and clarification?
A: Just as they are with an employee’s own “serious health condition,” employers are permitted to request certification from a treating physician of a family member’s serious health condition. We recommend using DOL-approved forms for this purpose.
Equal Employment Opportunity Commission (EEOC)
Q: Does GINA apply to workers’ comp claims?
A: Generally, yes. The regulations do not give employers a pass as long as genetic information is being requested as a part of a workers’ compensation process. However, the regulations expressly provide that they do not “limit or expand the protections, rights, or obligations of employees or employers under applicable workers’ compensation laws.” Thus, where genetic information was necessary to defend a claim prior to GINA, it would appear that an employer is still entitled to that information. However, it is not clear whether much information that would constitute “genetic information” was ever required to defend a claim. This will undoubtedly be an area where the regulations will be tested going forward.
Q: Are there any circumstances in which an employer could argue that the use of credit histories is a legitimate, necessary screening tool for certain job applicants?
A: Yes, but the inquiry is fact-specific. The general statement of the legal test is that the credit history check must be “job-related and consistent with business necessity.” There is no blanket exception for employees of a bank or financial institution, nor are there blanket exceptions for employees who may handle cash. The decision to use credit checks as a screening tool should be carefully evaluated on a position-by-position basis.
Immigration & Customs Enforcement (ICE)
Q: Should employers make and retain photocopies of the identification provided by the employee as proof of authorization to work in the United States?
A: The law only requires the employer to retain the Form I-9 itself, not copies of the underlying documentation. While there are pros and cons to keeping those copies, we recommend that you do not. Retaining copies could lead to second-guessing by government officials regarding the determination that documents reasonably appeared to be authentic. However, if you do choose to retain copies of the documents provided to you by an employee, you must do the same for allemployees, regardless of national origin or citizenship status. United States Citizenship and Immigration Services (USCIS) recommends that employers who choose to retain copies of employees’ documentation keep those copies together with their Forms I-9.
Q: As an employer, what should we do if we believe the employee has provided us with false documentation? Are we OK as long as we have a photocopy of documentation they provide us?
A: As an employer, you must accept any valid (original, unexpired) documentation from the Lists of Acceptable Documents presented by the individual that reasonably appear on their face to be genuine and to relate to the person presenting them. However, if you do not believe the documentation to be genuine or to relate to the person presenting them, you must not accept them.
Q: If an employee legally changes his/her name, does he/she need to complete a new I-9 card and submit a new Social Security card as proper identification?
A: You are not required to update Form I-9 when an employee changes his/her name. However, USCIS recommends that you maintain correct information on Form I-9 and note any name changes in Section 3. While employees are not required to provide their employers with documentation verifying the name change, you make ask the employee for the reason for the name change to be reasonably assured of the employee’s identity and the veracity of his/her claim of a name change.
Q: What about I-9s for former employees (1 yr – 2 yr) that may have technical violations?
A: Technical violations for former employees may be correctible. For example, if the employer completed the document description on a single line instead of placing separate information on the various multiple lines, the document could be corrected (assuming all the relevant information was present on the document). However, most corrections for former employees are difficult, if not impossible, to correct. It is most likely better to leave the violation uncorrected than to engage in some corrective action that may leave the appearance of impropriety.
Q: If we find we are missing an I-9 for an employee but take the steps to remedy the situation, what date should we put on the newly completed I-9 – the current date, or the date when the employee started with the company?
A: The current date. In any case that a correction is being made, or a substitute I-9 being prepared, candor is paramount.
Q: Where can we access additional information about the more technical aspects of completing and retaining I-9 forms in order to avoid violations?
A: The USCIS has produced a 63-page manual called “Handbook for Employers: Instructions for Completing Form I-9” that is available to all employers. To obtain a copy, click here.
Q: Can you give more input on the issue of abbreviations on I-9s?
A: On page 5 of its “Handbook for Employers,” USCIS states that “DL” and “SS” are acceptable abbreviations for Driver’s License and Social Security, respectively. Where the employer has used an abbreviation that is not acceptable, it can be corrected in the same manner as other corrections are made. Specifically, the same author should, using different color ink, line through the incorrect information, write the new information, and initial and date the change
Q: How should I-9 forms be retained?
A: Forms I-9 must be retained either on paper, microform or electronically for three (3) years after the date or hire or one (1) year after termination, whichever is longer. If you choose to retain paper I-9 forms, they must be kept separately from employee files.
Q: How many years back can ICE audit an employer’s I-9 records?
A: Our experience has been that ICE audits will encompass all I-9s that should be on file for that employer as of the date of the inspection (any employee hired within the three (3) years prior to the audit date or terminated within one (1) year prior to the audit date). For additional information on what to expect from an I-9 inspection, click here to download ICE’s “Form I-9 Inspection Overview.
Q: When an auditor arrives on-site at a facility, does he need to see the I-9s for all company employees or just the ones at that particular facility?
A: This will likely depend upon what prompted the investigation. Audits could take either form.
Labor Unions / National Labor Relations Board (NLRB)
Q: In regards to Weingarten Rights, is there a specific person that an employee is allowed to call in? Could it be anyone or does it have to be a manager, HR rep, etc?
A: Weingarten Rights are the rights of an employee to ask for union representation during an investigatory interview which he/she reasonably believes may result in disciplinary action.
Q: The NLRB recently proposed a new rule which would require private-sector employers to post a notice explaining the employees’ rights to unionize. Do we need to display this poster now?
A: No. The rule is not yet final, and public comment is still being accepted through February 22, 2011. Click here for more information about this proposed rule.