Employment Law Update

Michael Patrick O’Brien
August 12, 2009 | COMMENTS

A clearer picture is now emerging of the government's current immigration enforcement strategy against employers. The Department of Homeland Security (DHS) recently sent out 652 notices (more than the total sent out all of last year) to employers that they soon will be subject to inspection regarding their compliance with I-9 form requirements. It might be a good time to do your own I-9 audit (the current I-9 form is still valid despite an expiration date on it of 2/02/09). Instead of raids with gun toting federal officers, employers with known undocumented workers have received notices warning them to fix the problem or face enforcement actions. Although DHS has indicated it will drop its “no-match” regulations (now blocked by court order), which are rules issued during the Bush years regarding how employers should deal with employees whose names do not match their Social Security numbers, the Senate has signaled that it wants these rules kept in place. The Senate also has voted to make the E-Verify program permanent. E-Verify is the federal system allowing employers to electronically verify that someone is legally authorized to work in the United States. Finally, the Obama administration has announced that effective September 8, 2009, federal procurement contractors will have to use E-Verify for all new procurement contracts.

Union Organization Bill Revamped

Democratic senators have decided to revise the Employee Free Choice Act (EFCA) in hopes of bolstering the chances it will be enacted. Senators will drop the provision allowing union organization by signatures on a card instead of by secret ballot. The revised bill will require shorter unionization campaigns and faster elections (i.e. within 5 or 10 days after 30% of workers sign authorization cards, instead of within 6 to 8 weeks).

Although disappointed by the changes to the bill, union leaders have said the new bill is still good for them because it gives companies less time to convince workers to vote against the union. Other provisions of the EFCA remained unchanged, including the provision requiring mandatory arbitration if labor and management do not quickly reach an initial collective bargaining agreement. The New York Times reports that only one-fifth as many private sector employees belong to unions today compared to fifty years ago. Unions are seeking to pass the EFCA, even a watered-down version, to try to reverse this trend.

Congress Zeroes in on Health-Care Reform

Committees in both the Senate and the House of Representatives have passed bills seeking health care reform. The common goal seems to be universal coverage. Some of the bills move towards this goal by mandating that employees either provide insurance for employees or pay a certain surcharge to allow the government to provide coverage. Stay tuned for developments.

Employment Litigation Update

Kodak has agreed to pay $21 million to settle claims of race discrimination brought by African-American workers who alleged they did not get raises or promotions due to job bias. T-Mobile is being sued by sales associates who allege they were not paid for performing duties “off the clock” such as logging into computer systems and responding to text and e-mail messages when off duty. A Texas employer has been hit with a verdict for improperly accessing employees' MySpace pages. The employer used another employee's password to access the by-invitation-only site and then fired employees who posted negative comments about the company. The court found these actions violated the involved employees' electronic privacy. In response, the owner of the restaurant vowed to de-friend all employees and leave social networking to his teenage children.

SCOTUS Issues Reverse Discrimination Ruling

In a 5-4 vote, the Supreme Court of the United States (SCOTUS) has ruled that white firefighters in New Haven, Connecticut, were subjected to reverse discrimination when the City threw out the results of a promotion test because no black firefighters scored at a level where they would qualify for promotion. The Court's decision acknowledged the City was in a “damned-if-you-do-and-damned-if-you-don't” situation with the test results, facing lawsuits from either side, but the Court nonetheless concluded, “Fear of litigation alone cannot justify the City's reliance on race to the detriment of individuals who passed the examinations and qualified for the promotions.” As a result of this case, employers should carefully examine the circumstances in which they use tests for employment purposes and make darn sure they are willing to live by the results of the test before they give them. If these tests are not discriminatory, this case may give employers a stronger defense to lawsuits brought when certain persons don't do as well on the test as others.

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.com or visit www.joneswaldo.com. Reprinted with permission.