Jan. 01 (12:00 AM - (12:00 AM) - Mar. 31, 2009
USCIS delays effective date of new I-9 form

Originally set to go into use February 2, 2009, the new I-9 form is temporarily shelved. As SHRM's Legislative Alert warned today, Employers who use the new form prior to the April 3, 2009 effective date are subject to civil monetary penalties. Here is more information from SHRM about the delay and the reason for it...

Officials with the U.S. Citizenship and Immigration Services (USCIS) have delayed until April 3, 2009, a requirement that employers must use a revised version of the employment eligibility verification formﾂￄ￮known as the I-9 form. According to an interim rule published in December 2008, employers were supposed to begin using the revised verification form on Feb. 2, 2009. However, when President Obama took office, the White House issued a directive to all federal agencies asking them to review any regulations introduced by the Bush administration but had not taken effect before Jan. 20, 2009.

USCIS officials stated that the 60-day delay should provide adequate time to complete a full review of the new form and employment verification requirements. A notice announcing the delay was set to appear in the Federal Register. In addition, the USCIS will reopen the public comment period on the new rule for 30 days, until March 4, 2009.

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The interim final rule as published would have revised the types of acceptable identity and employment authorization documents employers can accept from new hires.

The interim rule, if implemented, would stipulate that employees could not use expired identification documents to verify their work eligibility. The proposed revised I-9 form is available online from the USCIS web site (www.uscis.gov).

Reprinted from SHRM's HR News 2/1/09


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First 100 Days of Next President, Congress Will Be Busy

By Allen Smith

The first 100 days of President-Elect Barack Obamaﾂￄ￴s and the new Congressﾂￄ￴ tenure will be busy and are likely to include activity on paycheck fairness bills and the Employee Free Choice Act (EFCA), according to Camille Olson, an attorney with Seyfarth Shaw in Chicago.

In light of Obamaﾂￄ￴s co-sponsorship of the paycheck fairness bills, they will be top priorities in the next Congress, Olson predicted in a Nov. 14 interview. But she believes that unions might compromise on EFCA and agree to preserve secret-ballot elections, which she said businesses will fight hard to save. Unions instead might press for a significantly shorter period than the 42 days unions and employers now have between union petitions for recognition and secret-ballot elections.

Paycheck Fairness Bills

Three billsﾂￄ￮the Ledbetter Fair Pay Act, the Paycheck Fairness Act and the Fair Pay Actﾂￄ￮have been introduced to negate a 2007 Supreme Court ruling in Ledbetter v. Goodyear Tire & Rubber Co. That decision held that a Title VII pay discrimination claim must be filed with the Equal Employment Opportunity Commission within 180 or 300 days from when the allegedly discriminatory pay decision was made. The period for filing such a claim does not begin anew with each paycheck issued following the challenged pay decision, the Supreme Court ruled. In Ledbetter, the court held that the plaintiffﾂￄ￴s claim had not been timely filed. Olson noted that the plaintiff in Ledbetter, Lilly Ledbetter, was a featured speaker at the Democratic Convention in July.

The Ledbetter Fair Pay Act would amend the statute of limitations for pay discrimination claims filed under Title VII to make it easier for employees to file claims, Olson said. The Paycheck Fairness Act would amend the Equal Pay Act to enhance remedies for sex-based disparities in pay by allowing compensatory and punitive damages. The Fair Pay Act would amend the Fair Labor Standards Act (FLSA) to require that employers provide equal pay for jobs with comparable skill, effort, responsibility and working conditions.

Olson said that action on the paycheck fairness bills could be as swift in the next administration and Congress as action was on the Family and Medical Leave Act (FMLA), the first piece of employment legislation signed into law after President Clinton took office.

EFCA

Michael Lotito, an attorney with Jackson Lewis in San Francisco, told SHRM Online that ﾂￄgoing forward, the most pressing question involvesﾂￄ EFCA. If enacted as written, ﾂￄit will deprive workers of the right to secret-ballot elections, subject them to unrelenting peer pressure to sign cards and put our economic well-being in the hands of third-party arbitrators.ﾂￄ

But Olson predicted that ﾂￄEFCA is not going to pass in its current form, and I would be very surprised to see the elimination of secret ballots.ﾂￄ While she thinks employers have a good shot at preserving secret-ballot elections, the period of time to campaign before elections might wind up being shorter. A shorter campaign period would mean that employers ﾂￄcanﾂￄ￴t parachute in and provide employees with information,ﾂￄ she said. So, Olson recommended that employers prepare now for EFCA.

Joe Beachboard, an attorney with Ogletree Deakins in Los Angeles, agreed that unions might focus on a shorter campaign period leading up to elections rather than mandatory union recognition after more than half of workers in a bargaining unit sign union authorization cards. He said that fair pay legislation had a better chance of enactment in the first 100 days than EFCA.

Lotito predicted that the ﾂￄbattleﾂￄ over EFCA ﾂￄmay consume us for the next year and beyond and could be one of the most long-lasting impacts of an Obama presidency.ﾂￄ

Stephen Mitchell, an attorney with Fisher & Phillips in Columbia, S.C., predicted that ﾂￄat best, there will be a short election period,ﾂￄ but he said this would be a ﾂￄdrastic change in labor law.ﾂￄ He thinks the business community would fight mandatory arbitration as a ﾂￄdeal killer,ﾂￄ but added that ﾂￄunions may be emboldened by the election.ﾂￄ EFCA also would dramatically increase penalties, Mitchell said, noting that the act would raise penalties $20,000 for each unfair labor practice in addition to trebling back pay awards.

Other Major Legislation

Other legislation that will be considered in the next Congress includes the Healthy Families Act, which would require employers with 15 or more employees to provide employees who work 30 or more hours a week no less than seven days of paid sick leave each year. Obama and Vice President-elect Joe Biden co-sponsored this bill.

The Employment Nondiscrimination Act would amend Title VII to add sexual orientation as a protected class. Garry Mathiason, a Littler Mendelson attorney in San Francisco, told SHRM Online that this bill ﾂￄis almost a certainty, moving the federal government into the 21st century.ﾂￄ He added that ﾂￄthe only limitations might be efforts to include gay marriage in the bill and the debate this would almost certainly engender.ﾂￄ

Thereﾂￄ￴s no shortage of other proposed legislation. Olson said that the Workplace Religious Freedom Act would make it much harder for an employer to show that a particular religious accommodation would place an undue hardship on an employerﾂￄ￴s business operation.

The Crime Victims Employment Leave Act would amend the FMLA to permit leave for employees who are violent crime or domestic violence victims, or whose immediate family members are violent crime or domestic violence victims, to attend court proceedings. Olson noted that Rep. Rahm Emanuel, D-Ill., recently named as Obamaﾂￄ￴s White House chief of staff, introduced this bill.

H-1B visa cap measures might raise the current annual H-1B visa cap from 65,000 to as many as 195,000 annually. Olson pointed out that when Clinton was in office, the visa cap temporarily was raised to 195,000 for several years and that Obama has expressed support for a temporary increase in the H-1B visa cap.

Employee verification measures might create a mandatory electronic employment verification system or make the current voluntary E-Verify program mandatory to verify that hired individuals are authorized to work in the United States. But Olson said that the Department of Homeland Securityﾂￄ￴s ﾂￄno-matchﾂￄ rule could be shelved. ﾂￄThe rule has been opposed by both employer and employee groups. Given that Obama does not support an expansion of the E-Verify program, which the rule relies on, it seems highly unlikely that he would support a rule that has no supporters aside from its sponsoring agency.ﾂￄ

There is even more new legislation on the horizon, Olson noted. The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act, or RESPECT Act, would amend the National Labor Relations Actﾂￄ￴s definition of ﾂￄsupervisorﾂￄ by deleting ﾂￄassignﾂￄ and ﾂￄresponsibility to directﾂￄ from the current legal definition. This legislation is in response to three rulings issued by the National Labor Relations Board that interpreted the definition of a supervisor broadly, she explained. Obama is a co-sponsor of the Senate RESPECT Act bill.

The Equal Remedies Act and Civil Rights Act would remove the current caps on compensatory and punitive damages for Title VII and Americans with Disabilities Act violations and increase employer liability and damages for age discrimination and FLSA retaliation claims and prohibit pre-dispute arbitration agreements.

The Arbitration Fairness Act would amend the Federal Arbitration Act by invalidating any pre-dispute arbitration agreement requiring arbitration of an employment decision, Olson added. Mathiason said that the legislation in effect would prevent employment arbitration except under collective bargaining agreements and would ﾂￄkill a tool that now covers about 25 percent of the workforce and has won Supreme Court approval.ﾂￄ He said that ﾂￄthis statute has an excellent chance at passageﾂￄ in 2009.

The Employee Misclassification Prevention Act would amend the FLSA to increase penalties and enforcement against employers that misclassify employees as independent contractors. The Patriot Employer Act would provide a 1 percent tax credit for employers that do not engage in offshoring and adopt a position of neutrality in unionization drives. The Americaﾂￄ￴s Workers Act would, Olson said, expand occupational safety regulation under the Occupational Safety and Health Act by increasing whistleblower protections and increasing penalties. Obama co-sponsored this bill.

In addition, the Occupational Safety and Health Administration is expected to begin enforcing the Clinton administrationﾂￄ￴s ergonomics standard and ﾂￄtake a harder line against companies charged with work safety violations,ﾂￄ Olson added.

There also is the likelihood that health care reform will be addressed. As the Society for Human Resource Managementﾂￄ￴s (SHRM) Government Affairs Department noted in its November 2008 Post-Election Outlook, ﾂￄwhile agreement on national reform remains elusive, there is strong bipartisan interest in addressing the building blocks for a better health care systemﾂￄ￮health information technology, greater access to consumer-friendly health outcomes data and improved quality of care.ﾂￄ

The SHRM report pointed out that while Congress enacted major pension reform in August 2006 with the Pension Protection Act, ﾂￄmany still felt that the 2006 law needs modificationsﾂￄ￮namely to address disclosure of fees and client education.ﾂￄ Also, many tax code provisions that encourage contributions to defined contribution plans expire in 2010 and will need to be extended.

Mathiason concluded that the lengthy list of possible legislation in the next Congress and presidential administration ﾂￄis just the start of what promises to be the greatest changes in employment and labor law during the last 25 yearsﾂￄ￮and perhaps the last 50 years.ﾂￄ

Allen Smith, J.D., is SHRMﾂￄ￴s manager of workplace law content.
(reprinted from SHRM's Workplace Law Bulletin, 12/3/08)

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One month and counting...are you ready?

The second wave of federal minimum wage increases signed into law on May 25, 2007, will go into effect on Thursday, July 24, 2008. On this date, the federal minimum wage will increase from the current $5.85 per hour to $6.55 an hour. For employers of minimum wage employees, this is a reminder to make sure all employees will earn at least $6.55 an hour for all time worked on, and after, July 24th.

For employers of "tipped employees," the federally-mandated minimum cash wage which must be paid directly to the tipped employee will not increase from $2.13 an hour. However, the increase in minimum wage means employers must ensure that the tips received, combined with the direct cash wage, satisfy the new minimum wage requirement.

The U.S. Department of Labor has developed updated posters containing the information about the new federal minimum wage. These posters are available for free download at the DOL's website: http://www.dol.gov/esa/regs/compliance/posters/flsa.htm

One word of caution: Certain states have minimum wage laws that set amounts higher than the federal mandates for both minimum wage and tip credit. Wise employers will also check the requirements in the states where they operate for any other adjustments that follow from the increase of the federal minimum wage.

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Genetic Information Non-discrimination Act Now Law

After over ten years of debate, President Bush on May 21, 2008 signed into law the Genetic Information Nondiscrimination Act (GINA or "Act"). GINA has been called the "first civil rights law of the 21st Century" and protects individuals from discrimination on the basis of their genetic information in both employment and health care. The employment provisions of GINA go into effect in November 2009, by which time the Department of Labor is charged with enacting its regulations for GINA. The health care provisions become effective in May 2009. GINA is designed to increase protection for those with genetic conditions from health insurance and employment discrimination without the requirement that the individual display symptoms of the condition.

Employment provisions

GINA prohibits an employer from discriminating against an employee based on genetic information of the individual or a family member of the individual in the areas of hiring, firing, compensation, terms or privileges of employment. GINA does not limit the definition of family member to blood relatives. Rather, it defines a family member as (a) the spouse of the employee; (b) a dependent child of the individual, including a child who is born to or placed for adoption with the individual; or (c) a parent, grandparent or great-grandparent. Under GINA, an employer may not request, require or purchase genetic information of the individual or family member except (1) where the employer inadvertently requests or requires the information; (2) for genetic services offered by the employer (including wellness programs); (3) for purposes of complying with the Family and Medical Leave Act, and (4) where the employer purchases commercially available documents such as newspapers or magazines. GINA provides an exception for genetic monitoring of biological effects of toxic substances in the workplace but only under certain conditions. The remedies under GINA for violation of the employment provisions are the same as those provided under Title VII for unlawful discrimination and retaliation in employment although GINA at present does not allow a disparate impact cause of action.

Health care provisions

GINA provides that health care plans cannot require a plan participant to undergo a genetic test to be eligible for coverage under a health care plan. Health care plans, whether insured or self-insured, group or individual plans, cannot prevent an individualﾂￄ￴s eligibility to enroll in the plan or adjust premium or contribution rates based on an individual or family memberﾂￄ￴s genetic information. The Act provides that any reference to genetic information concerning an individual or family member includes genetic information of (a) a fetus carried by a pregnant woman; and (b) an embryo legally held by an individual or family member utilizing assisted reproductive technology. Nevertheless, GINA provides an exception for health care treatment in that a patient may undergo a genetic test or be advised on the provision of a genetic test or services through a wellness program and not run afoul of the law. With respect to federal medical privacy laws, GINA specifically amends the Health Insurance Portability and Accountability Act (HIPAA) by adding the category of genetic information to the list of health-related information that is "protected health information" under HIPAA.

Remedies for violation of the Health care provisions

For employer-sponsored or union-sponsored health plans that are covered by the Employee Retirement Income Security Act of 1974 (ERISA), GINA adds new enforcement provisions authorizing the Department of Labor to impose civil monetary penalties directly against plan sponsors of group health plans and against the issuers of health insurance covering insured health plans for violations of the healthcare provisions of GINA. The penalties can be as much as $100 a day for each day of noncompliance. The $100 a day penalties are capped at a total of $500,000, but only if the noncompliance was unintentional. In addition, plan participants of ERISA plans can utilize the normal enforcement provisions of ERISA including suits to obtain equitable relief such as injunctions if the ERISA provisions of GINA are violated.

Amendments to Fair Labor Standards Act through GINA

In addition to prohibiting discrimination based on genetic information, GINA amended the Fair Labor Standards Act of 1938 (FLSA) in a few important respects, by increasing penalties for violations of anti-oppressive child labor provisions or certain child labor safety requirements. Employers now may be penalized up to $50,000 for the death or serious injury of any employee under the age of 18. If the violation is willful or repeated, the penalty may be doubled. GINA raises the maximum penalty for other child labor violations from $10,000 per worker to $11,000 per worker and increased the maximum civil penalty for willful violation of the FLSA overtime and minimum wage provisions from $1,000 per violation to $1,100.

Expected outcomes of the Act

A majority of states have their own laws that are more stringent than GINA in their requirements, standards and implementations, and GINA specifically provides that such state laws supersede GINA. According to the National Human Genome Research Institute, 31 states including Texas have already adopted laws regarding genetic discrimination in the workplace. In those states, GINA is not expected to have a major impact.

Because GINA increases protections only for some medical information, addressing those only with genetic conditions, GINA has been criticized as privileging those with genetic conditions over those with nongenetic conditions. Whether public and private health insurance ultimately will limit their coverage of genetic testing as a response to GINA, based on privacy concerns, remains to be seen. Prudent employers who do not already have them should consider developing clear, written policies and procedures prohibiting conduct that would violate GINA and training on the content and boundaries of GINA. The Act requires employers to put genetic information on any employee or family member of an employee, however obtained, in a confidential medical record file, as a further protection from any inference that the information would be used to discriminate against the employee based on the content of the information. As with other federal anti-discrimination laws, the Equal Employment Opportunity Commission (EEOC) will provide the administrative framework by which GINA is enforced. The EEOC is also charged with establishing the Genetic Nondiscrimination Study Commission six years after enactment of GINA to review the developing science of genetics and evaluate whether a disparate impact cause of action should be provided under the Act.
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***Remember, you are always welcome to call or email your VP for Legislative Action Stephanie John if there is a legislative issue you would like MC-SHRM to address. Stephanie's email information is listed on this website in the General section.



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