Employment Law Update

Michael Patrick O’Brien
July 14, 2008 | COMMENTS

As a result of an amendment to an executive order, signed by President Bush in early June of 2008, all federal contractors now will be required to use the federal E-Verify system to confirm the legal status of their employees. E-Verify electronically compares I-9 provided information with the Social Security Administration database and the Department of Homeland Security immigration database to verify that the person identified by the I-9 information can legally work in the United States . Contractors will have to verify the employment eligibility of: (1) all persons hired by the contractor during the federal contract term to perform services in the United States and (2) all persons assigned by the contractor to perform work on the federal contract within the United States . Contractors who do not comply may risk losing their federal contracts. The amendment to the executive order will not take effect until involved federal agencies finalize an implementing rule on this issue, which could take sixty to ninety days. News reports say the new rules will affect some 200,000 employers with federal government contracts.

Pay Final Wages Promptly

Current and former SuperValu (Albertson's, Lucky, Sav-on) employees in California will participate in a $15-million settlement of a case alleging that the company failed to immediately pay employees their final wages on their last day of work for an involuntary termination (or within 72 hours of a resignation) as required by state law. Under California law, wages continue as a penalty for up to thirty days after termination. Most states have similar laws, but they each vary a bit. For example Utah requires pay within 24 hours for involuntary terminations and by the next regular pay period for voluntary resignations. You must follow the law of the state where your employee works, not the law of the state where company headquarters is located. Save yourself 15 million bucks and pay attention to this issue.

Law News Briefs

• Famous New York restaurant Tavern on the Green has agreed to pay over $2 million to settle claims that it allowed the harassment of female, black, and Hispanic employees. The company must also establish a reporting hotline, revise its policies, and conduct extensive training for all employees.
• A former female inspection employee is suing, and seeking $250 million from, NASCAR in New York for alleged sexual and racial harassment. The former employee alleges she was subjected to graphic and insulting racist and sexist comments and behavior and that she suffered retaliation, rather than relief, when she reported the problems.
• The Equal Employment Opportunity Commission (EEOC) has filed suit against a Utah car dealer in Utah federal court alleging that the company allowed female employees to be sexually harassed and fired one of them when she complained about the problems.
• As further proof that this issue happens at all levels, a federal appeals court judge in California has admitted to posting lewd and graphic sexual images and comments on a website he alleges was private and not available to the public.
• Finally, an interim committee of the Utah State Legislature is considering a bill that would prohibit employment discrimination on the basis of sexual orientation. A similar bill failed in the last legislative session and a similar proposal is stalled in Congress right now.

New Employment Law Bills in Congress

Within the last few weeks, bills have been introduced in Congress that would do the following: provide for paid Family and Medical Leave Act (FMLA) leave (H.5873); make the E-Verify program permanent (rather than a pilot program) (H.6008); remove the requirement of working 1,250 hours before an employee is eligible for FMLA leave (H.6029); allow federal employees to use up to two sick days a year in community service activities (H.5922); and limit the time for bringing discriminatory pay claims (S.2945). Stay tuned for developments!

Coffee Request Does Not Equal Sexual Harassment

According to a recent article in Law.com, a Pennsylvania federal judge has ruled that a company did not commit sexual harassment or retaliation against a female employee when she was fired for refusing to get coffee for the men in her office. The woman alleged that her office was sexist, primarily because she was complimented on her appearance, invited to lunch, and asked to get coffee for her male supervisors. The court dismissed the case, concluding that the act of getting coffee is not, by itself, a gender-specific act. The court concluded there was no evidence of gender bias because the coffee-getting job had always been assigned to the receptionist position, even though only women had ever held the receptionist job at the company. The former employee's lawyer said they will appeal the decision because the federal judge erred by not recognizing that some tasks are inherently more offensive to women. This may sound like an odd case, but the emotions underlying it on both sides are obviously real and can lead to expensive employment law battles like this one. My own approach to this kind of workplace problem is two-fold and rather practical: I don't drink coffee and when I need a Dr. Pepper, I get it myself.

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 801-534-7315 or mobrien@joneswaldo.comor visit www.joneswaldo.com. Reprinted with permission.