If you are near the Cobb Energy Centre outside of Atlanta please join me for my firm’s annual employment law seminar.
Date: Thursday, October 8, 2015 from 8:00 am – 3:00 pm
Location: Cobb Energy Performing Arts Centre
Cost: FREE, plus complimentary breakfast and lunch will be provided
Our attorneys—who have been recognized by Chambers USA: America’s Leading Lawyers for Business and Super Lawyers—will provide the coaching you need to tackle today’s employment challenges.
- New Rules: The DOL’s Efforts to Expand the Coverage for Overtime Pay.
- Labels Really do not Matter: The Dual Efforts of the DOL and NLRB to make Everyone an “Employee”.
- The Expanding Definition of “Sex”: From Pregnancy to Same Sex to Transgender Rights in the Workplace.
- Screen at Your Own Peril: How to Effectively Consider Criminal Records Given the EEOC’s Guidance and Enforcement Efforts and Expanding “Ban the Box” Legislation.
- Living in a Global Workplace: Minimizing the Risk of Migrating Key Personnel Across Borders.
- The Implementation of the Employer Mandate Under the Affordable Care Act: Regulatory Traps for the Unwary Employer.
Click here to register.
Hours before the government was due to shut down, the President signed into law a stopgap measure which will fund the federal government through December 11, 2015. The possibility of a government shutdown would have affected, among other programs, the E-Verify program administered by U.S. Citizenship and Immigration Services (USCIS). Similar to the 2013 federal government shutdown, which forced USCIS to pull the plug on employers’ use of the E-Verify system due to a lack of government funding, there would have been a repeat situation.
Passage of H.R. 719 removes the immediate threat of a government shutdown. For purposes of the E-Verify program, passage of H.R. 719 is noteworthy as not only is the program funded through December 11, 2015, its authorization to exist as a program was also extended until December 11, 2015. For those keeping close tabs on E-Verify, you will know that congressional authorization for E-Verify expired September 30, 2015. Negotiations are on-going in Congress to reauthorize the program for a period of 3 to 5 years.
On Tuesday the 29th of September, at 2 pm EST, I will conduct a free webinar entitled “I-9 and E-Verify Best Practices for a Legal Workforce”. The webinar is directed to HR professionals and others involved in the new hire onboarding process as well as the continuing employment of individuals. The webinar will provide practical tips on completion of the Form I-9, including the handling of remote employees, and use of the electronic employment eligibility verification system, known as E-Verify. It will explore common errors when completing the I-9 and consequences of non-compliance with immigration laws and regulations.
Accurate Background will host the webinar – thank you Accurate Background. You can register by clicking here.
Oh, and did I mention it’s free! I hope you will join us.
On Wednesday the 16th, at 2 pm EST, I will conduct a free webinar entitled, “Crucial Steps to FCRA Compliant Background Checks: Is Your Company Compliant?” The webinar is directed toward employers who request and use background checks from private background screening companies and will walk listeners through compliance with the Fair Credit Reporting Act, EEOC guidance on the use of criminal history information in employment screening, litigation in this area, and the impact of state laws on background checks (e.g., Ban the Box measures).
ClearStar will host the webinar – thank you ClearStar. You can register by clicking here.
Oh, and did I mention it’s free! I hope you will join us.
Switching gears from background screening and immigration compliance, I want to share information about an upcoming webinar featuring my colleague, Ashley Kelly. The title of the complimentary webinar is: Navigating New Legal Developments on Same-Sex Marriage, Transgender Rights, and Pregnancy Discrimination: What Employers Need to Know.
I hope you will join her on September 17th. For more information and to register, click here.
BMW Manufacturing Co., LLC (“BMW”) entered into a consent decree with the Equal Employment Opportunity Commission (“EEOC”) regarding allegations that they discriminated against African American logistics employees through application of criminal background checks which had a disparate impact and lead to said employees termination.
You will recall that the issue in the BMW litigation involved the use of a contractor’s less restrictive background screening policy versus BMW’s more stringent policy at a facility in South Carolina. The latter which resulted in the termination of employees. This led to allegations of race discrimination arising under Title VII of the Civil Rights Act of 1964. Click here and here to read more on this.
By entering into the consent decree, BMW expressly denies liability and does not admit any wrongdoing. At the same time, BMW is enjoined from use of the criminal background check guidelines which were in effect. The consent decree lays out key requirements for BMW and its logistics provider, including:
- They agree not to decline to hire any job applicant or otherwise disqualify any individual in a logistics position because of “criminal arrests or charges of any type if such arrests or charges did not result in a conviction.” (Consent Decree, p. 5)
- They can, however, postpone an offer of employment if there is a pending charge, pending resolution.
- They must conduct an individualized assessment if they seek to disqualify any job applicant based on criminal history. Meaning they must provide written notice to the job applicant describing the criminal history which is at issue and an offer to the applicant to explain the conviction and their appropriateness for employment.
- Above notice must be delivered by “reasonable means” and must afford the job applicant of period of at least 21 days during which time they can contact BMW or the logistics provider before an adverse employment decision is finalized. (Consent Decree, p. 6)
- They must appoint an official to review all final decisions to decline to hire or otherwise disqualify an applicant due to criminal history.
The last two points are noteworthy because (a) they are mandating that BMW conduct an individualized assessment each time criminal history is considered and (b) the 21-day timeframe. The EEOC enforcement guidance on the use of criminal records guidance does not mandate “individualized assessments”. Also, employers typically provide 5 business days between providing a job applicant with the pre-adverse action letter under the federal Fair Credit Reporting Act and the adverse action letter (assuming the employer is not going to hire the candidate). Conceding the point that adverse action notices are different than an individualized assessment and any notice related to that, it is interesting to note the 3 week time period here and what that may mean for employers who may seek to terminate a job applicant due to their criminal history.
Finally, BMW agreed to pay $1.6 million in monetary relief to fifty-six claimants and to offer those claimants who want to return, the opportunity to return to work at the facility.
The case is U.S. Equal Employment Opportunity Commission v. BMW Manufacturing Co., LLC, Sept. 8, 2015 (7:13-cv-01583).
We’re all busy and regardless of your industry, those responsible for hiring our workforce are pulled in many different ways and have to keep abreast of countless local, state and federal workplace related laws and regulations. The goal of this article is to take one aspect of the hiring process and break it down into five steps which will hopefully lead to greater immigration-related compliance.
Here goes. How to hire and maintain a legal workforce in five (overly) broad steps:
- Form I-9: All new hires (but not independent contractors) must complete an Employment Eligibility Verification Form (Form I-9) within three business days of hire. The Form I-9 is a two-page document issued by U.S. Citizenship and Immigration Services (USCIS) that verifies identity and work authorization. Employers must have available for inspection by Immigration and Customs Enforcement (ICE) their Forms I-9 for any employee hired post November 6, 1986. (See, Immigration Reform and Control Act of 1896 (Public Law 99-603), Section 274A(b) of the Immigration and Nationality Act and 8 C.F.R. section 274a.2). If an employer does not have Forms I-9 for their existing workforce hired after this date, ICE will allege noncompliance and the employer will be subject to civil penalties ranging from $110 to $1,100/violation for, for example, failing to produce a Form I-9. If you are reading this and suddenly realize you do not have Forms I-9 for your employees, call me to address remediation. This really is a situation where you do not want to do this yourself as you could, even if well-intentioned, make your situation worse. How? By backdating all of the Forms I-9. As a general rule, you never want to backdate a form.
- In addition to completing a Form I-9 for any new hire, an employer must maintain a Form I-9 for all current employees. Employers may destroy such forms, but only once an employee has been terminated and the requisite time period has passed. What’s the time period? Three years after date of hire or one year after termination, whichever is later. In addition to maintaining Forms I-9 for current employees, an employer must re-verify the work authorization of any employee who has temporary work authorization, such as a work permit. Section 3 of the Form I-9 is used for this purpose. Employers may maintain the Form I-9 in paper format, electronically or by using an electronic I-9 vendor.
- E-Verify: This is the federal government’s electronic employment eligibility verification program administered by USCIS, the same agency within the Department of Homeland Security that administers the Form I-9. E-Verify is a separate requirement from the Form I-9. The Form I-9 is required for all employees, but use of the E-Verify system is voluntary unless (and that’s a big “unless”) an employer is in a state that mandates use of the E-Verify system or are a federal contractor with the Federal Acquisition Regulation mandated clause requiring its use. Georgia is an example of a state that requires private employers within the state to use E-Verify and ties a company’s use to applications for, or renewals of, business licenses. Note that in some states, including Georgia, not only is there a state mandate to use E-Verify for private employers, but there is also a mandate to use E-Verify for public works contracts. Typically the state entity will write such language into the terms of the agreement or as a condition of a proposal.
- Enrolling in E-Verify is easy, painless and free. According to USCIS, it is used nationwide by more than 600,000 employers at more than 1.9 million hiring sites. To create a case in E-Verify, an employer enters information from the completed Form I-9 into the system and E-Verify will display an initial case result within a few seconds. Note that like the Form I-9, employers must create a case in E-Verify within three business days of hire. Again, according to USCIS, 98.78% of cases created in E-Verify are automatically confirmed as work authorized. At which point, an employer should close the case in the system. In cases where an employee is not automatically confirmed as work authorized, an employer may receive a Tentative Nonconfirmation (TNC). A TNC requires certain steps be taken by the employer, including advising the employee of the notice and not taking any adverse action during the pendency of the employee’s attempt to address the TNC. One major caveat about the E-Verify system. It does work and therefore, certain employers/industries may potentially experience workforce shortages due to E-Verify use. All employers using the system must post participation posters to inform current and prospective employees of their participation. These posters must be posted in English and Spanish and include the E-Verify Participation Poster and the Right to Work Poster.
- Remote Hires and Government Audits: First, remote employees. Not all employees work in an office or near an office where they can easily complete the Form I-9 within three business days of hire. These are considered “remote hires” and because ICE is operating in the 20th century when Skype and other useful technology did not exist, employers must complete the Form I-9 for these individuals using a trusted agent or representative. This can be anyone, including a notary or the dog walker. The employee must still complete section 1 of the Form I-9 and the employer’s agent or representative must complete section 2 in its entirety, including a tactile inspection of the document(s) presented by the employee for section 2 purposes. This means, no photocopying of the documents by the employee and sending them to Human Resources for completion of section 2. Read the employer attestation in section 2 carefully to understand what you are attesting to. Second, worksite enforcement. ICE does audit employers’ compliance with our immigration laws, including proper completion of the Form I-9 as well as whether an employer knowingly hires or continues to employ an individual knowing they are not authorized to work in the United States. Note that ICE has entered into memorandums of understanding with other government agencies, including the Department of Labor, which means that what starts as a Form I-9 investigation could lead to other workplace investigations.
Above is not an attempt to provide legal counsel, but intended to be educational and provide a broad overview of general requirements. If you are currently addressing policies and procedures around your company’s use of the Form I-9 and E-Verify, or are the subject of a government investigation by ICE, I am happy to discuss these with you and provide legal counsel.
An appeals court in California recently held that California’s Investigative Consumer Reporting Agencies Act (ICRAA) is not unconstitutionally vague. (Connor v. First Student, Inc., et al., Cal. Court of Appeal, Second Appellate District, Division Four, B256075, B256077 (8/12/15)).
The court disagreed with the analysis in Ortiz v. Lyon Management Group (appeals court held that ICRAA was unconstitutionally vague as applied to tenant screening reports containing eviction records because such information relates to both creditworthiness and character information and ICRAA and CCRAA do not provide adequate notice of which law is applicable if information can be categorized as both character information and creditworthiness information). In reversing the judgment of the lower court in Connor, the appellate court stated, “We disagree with the analysis in Ortiz…. There is nothing in either the ICRAA or the CCRAA that precludes application of both acts to information that relates to both character and creditworthiness. Therefore, we conclude that ICRAA is not unconstitutionally vague as applied to such information.”
The Connor case involved employment-related background checks. Connor, a bus driver, alleged that the notice she received related to the background investigation did not contain the requisite language required by ICRAA and that her employer did not obtain her written consent.
The Connor decision follows a string of cases in which California courts held that ICRAA is unconstitutionally vague, including in Trujillo v. First American Registry, Ortiz v. Lyon Management Group, Moran v. The Screening Pros, and Roe v. LexisNexis Risk Solutions.
The E-Verify program is set to expire 9/30/15 unless it is reauthorized by Congress (cue scary movie soundtrack). So what does that mean for employers who use E-Verify? Will you be locked out of the system come October 1, 2015 if the program isn’t reauthorized by Congress?
Quick recap of the program, which allows employers to electronically verify new hires’ work authorization. The program is administered by U.S. Citizenship and Immigration Services (USCIS). It was created as the Basic Pilot program back in 1996. Over time it has changed names from the Basic Pilot program to E-Verify. Over the years it has been reauthorized by Congress for a set amount of time, usually at the last minute. Last time it was reauthorized (in 2012) it was reauthorized for a period of 3 years, until September 30, 2015. Congress is currently in recess until September 8, although discussions are on-going about reauthorization for this program and three other programs set to expire at the same time (EB-5 visa program, Conrad 30 and religious worker visas). To learn more about this and what will happen if it is not reauthorized, please join me for a FREE webinar later this week with Chad Whittenberg from Equifax Workforce Solutions. Details are below:
E-Verify Down to the Wire: Will Congress Shut It Down? (And Other Updates)
Date: Thursday, Aug. 13, 2015
Time: 2:30 PM EST
Duration: 30 minutes
The deadline for reauthorization of E-Verify is looming. Congress is likely to go right down to the wire, finalizing the needed legislation potentially only days before the Sep. 30 deadline.
In this half-hour session, we review the most likely scenarios for reauthorization based on past history, and provide updates on other recent developments that affect employers who use E-Verify.
- Reauthorization – what it is, why it happens, how often it happens
- Congress – likely paths to reauthorization, but what if…
- RIDE authorizations, signature-waived permanent resident cards, other updates
TO REGISTER, click here or here.
Section 613 of the Fair Credit Reporting Act (FCRA) requires that consumer reporting agencies (CRAs), when reporting a consumer report for employment purposes which contains public record information, which are likely have an adverse effect upon a consumer’s ability to obtain employment, must either follow strict procedures or send notice to the consumer. Both the law, and the Federal Trade Commission (FTC), are clear that CRAs can select either option and are not required to follow both 613(a)(1) and 613(a)(2). But the ridiculous amount of FCRA-related litigation has CRAs wondering…should I do both? I’m not legally required to do both, but should I have both strict procedures in place and send notice to cover all my bases from a litigation perspective? While this blog posting is not intended to offer legal advice, I am happy to discuss this broader issue with CRAs offline. For purposes of this blog, I will leave you with this nugget.
The FCRA does not define “at the time”, which is part of the notice provision of section 613(a)(1). The full section reads, “at the time such public record information is reported to the user of such consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported;”. A recent district court opinion in the rocket docket, the 4th Circuit, provides a very generous reading of the notice provision. The case, Rodriguez v. Equifax Information Services, LLC (1:14-cv-01142) (E.D. Va., July 17, 2015), involves an employee who applied for a position with the Office of Personnel Management (OPM). Two relevant facts — the plaintiff’s security clearance was approved and he never actually received the notice. However, essentially held that Equifax Information Services had an appropriate process in place to provide notice to consumers. The process included sending notices by mail the following business day (and in some instances two business days later), after the report had been provided to OPM.
Key takeaways from the Court’s Memorandum Opinion (“Opinion”):
- The Court states that the “at the time” requirement is ambiguous (which is true) and there is “more than one reasonable interpretation of what that requirement means.” (Opinion, p. 9)
- The Court states that “Congress did not impose a ‘same time’ requirement with respect to the receipt of the notice; and in 2000, the Federal Trade Commission interpreted the ‘at the time’ requirement to permit the mailing” of such a notice. (Opinion, p. 9) This we already know and more specifically what the FTC says is, “A CRA may use first class mail or other reasonable means to notify consumers that it is providing public record information for employment purposes under subsection (a)(1).” (See, 40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report with Summary of Interpretations, p. 81).
- This takeaway is very helpful for CRAs using the notice option of section 613. The Court does not require parity with the method by which the notice is sent. Meaning, a CRA can send the notice by automated/electronic means to the employer and by mail to the consumer. The Court states that they “cannot conclude that the text of the statute requires such technological symmetry during periods of technological innovation so long as the system initiated, at the same time a report to OPM was initiated, a process that was designed to deliver notice to the consumer according to a reasonable, standard and accepted method of delivery.” (Opinion, p. 9)