Employment Law Update

Michael Patrick O’Brien
January 11, 2008 | COMMENTS

As noted in the last update, the United States Citizen and Immigration Services (USCIS) Agency has released a revised I-9 form and instruction booklet for employers to use in verifying a new hire's identification and employment eligibility. We now know that employers must start using the new form as of 12/26/07 or risk penalties. You can see the new form on the internet here or here and the revised instruction handbook here.

The form itself has not really changed, but the documents used for verifying work eligibility and identification have changed. Certain documents no longer acceptable have been eliminated from the document list and others added. Remember that I-9 forms must be filled out for each employee within three days of employment and must be retained for three years or one year after termination of employment, whichever time period is longer.

Back to the Drawing Board for SSN No-Match Regulations

Hopelessly bogged down in federal court litigation in California regarding its new proposed Social Security number (SSN) no-match regulations (discussed in previous updates), the United States Department of Homeland Security (DHS) has decided to go back to the drawing board. The regulations outline steps an employer must take when the names/SSNs it provides for newly hired employees do not match the records of the Social Security Administration. The proposed regulations were issued several months ago and expected to take effect in September of 2007, but a federal court issued an order restraining DHS from implementing them. DHS now has asked the court to postpone the

litigation until the end of March of 2008 while it re-writes the proposed regulations to try to eliminate the problems identified in the lawsuit. In the interim, employers who receive no-match letters should handle them as in the past. Do not assume the letter addresses an undocumented or illegal worker situation and do not discriminate based on citizenship. Give the employee time to fix the problem. If he/she cannot fix it, you may have to let the employee go for failure to present a valid SSN.

Risks from Personal Relationships with Co-Workers

In training, and in these updates, I often say that a supervisor who engages in a personal romantic relationship with a co-worker is involved in highly risky behavior that could lead to lawsuits, job loss, marital difficulties, and ruined careers. Such relationships usually create conflicts of interest and often lead to sexual harassment claims if/when the relationship ends. Recent news headlines may provide another example of the problems related to such relationships. The American Red Cross recently fired its CEO for engaging in a personal relationship with another Red Cross employee, perhaps one he supervised. The Red Cross, while not releasing details of the matter, stated that it concluded the married CEO had used poor judgment in the situation and that his ability to lead the Red Cross was diminished as a result.

Ten Commandments of Performance Appraisals

A recent article in the New York Law Journal outlined the following interesting ten commandments of employee performance evaluations:

1. Don't let the time slip by—if it is an annual review, do it on an annual basis.
2. Tell the truth.
3. Remember the audience and be accurate but professional—now is not the time to "Donald Trump" someone.
4. Do not over-praise and give the highest grades only to those who deserve them.
5. Do not be afraid to be candid.
6. Do not speak in code or corporate jargon.
7. Avoid meaningless buzzwords like "bad attitude" or "not a team player" and instead give specific examples of problem behavior.
8. Don't let a good or bad evaluation be a surprise; communicate on issues throughout the year too.
9. Get rid of non-performers after they have had notice of problems and a fair chance to improve performance.
10. Word always gets out and you will be judged in the recruiting market by what your former employees say about your review system, so do it well and professionally.

Employment Law Tidbits

The Equal Employment Opportunity Commission (EEOC) has announced that a Florida health company has paid $1.8 million to settle a male employee's claims that he was sexually harassed by another male executive at the company and subject to retaliation (discipline and denial of stock options) after he complained about the behavior. The settlement also requires the company to strengthen its policy precluding same-sex

harassment and train all supervisors about the laws prohibiting discrimination, harassment, and retaliation. Employer monitoring of employee e-mails and Internet use is commonly done in the United States , but was recently declared to be a human rights violation in Europe . The primary problem, according to the European Court of Human Rights, was that the employer had not warned employees that it would engage in such monitoring, a notice that should be given in the United States too. Finally, new state

laws are cracking down on "distracted" drivers who eat, text, cell phone, etc. while driving. Make sure your employees who drive as part of their duties comply with applicable laws and rules of good sense, or you may be held liable for their accidents on the road while working.

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship. Contact O'Brien at mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.