All employers are reminded that the newly revised I-9 form, issued by the Department of Homeland Security on March 8, 2013, must be used for all new hires beginning today. Use of the older version of the form after today will constitute a technical violation that can be corrected either by completing the new version of the form or attaching an acknowledgement memo to the old form.
I’d like to draw your attention to a peculiar item of nomenclature in our current lexicon. I speak of the curious term “undocumented worker” as used to describe a person from another country who is present in these United States without legal authority. In the “old” days, we referred to such persons as “illegal aliens” but apparently such a label is no longer politically correct. With all due respect to the Lords Of Style, Education, Respect, and Symantics, who appear to define what is or is not Politically Correct, this too is STUPED.
Welcome. We’ve been gone a while. We have been gathering our resources and now . . . We’re Baaaaccck !!!
Although legislation has yet to be even drafted, the current proposals for comprehensive immigration reform suggest that employers will continue to bear the brunt of the government’s resources expended on enforcement. After all, there is a limit to the number of unmanned aerial drones that can patrol the skies above our borders.
Recent trends reveal that employment retaliation claims are on the rise. Further, courts are taking a hard line on offending employers accused of retaliation in employment. A review of United States Supreme Court decisions in retaliation cases reveals a remarkable degree of agreement among the Justices. Even conservative Justices who are considered supportive of business as a matter of judicial philosophy do not take kindly to retaliation against employees who have asserted workplace legal claims.
But not in Japan. Arnold Schwarzenegger and Dominique Strauss-Kahn are making headlines they probably wish they had never made. While I’m not a man and can, therefore, only surmise that the root of the problem somehow goes back to The Man Gene, as John Phillips so eloquently calls it, their current woes bring to the forefront issues that some employers – or at least their supervisors – sometimes face but don’t often think about, i.e., what happens when a supervisor either engages in or is accused of sexual harassment. When we are faced with such situations, our focus is usually on the company’s potential liability and what we can do to either prevent or limit such liability. Of course, the best case scenario is to not have such accusations in the first place. And, one of the best preventative measures employers can implement is training. Oddly enough, supervisors tend to think twice about their actions when they are reminded of the consequences, which include not only potential civil liability under some state anti-discrimination statutes and other common law theories, but also the nuclear fallout that often occurs. I’m talking about the hurt caused to their families (even if the accusations prove to be wrong), their reputations, and their jobs (assuming they still have one). Schwarzenegger’s indiscretions may cost him at least two of these things and may now lead to an investigation into whether he used campaign money to pay for women. Strauss-Kahn is on suicide watch, appears to have been dismissed from his high-power position, and may be watching his political career explode. While most of our supervisors may not be in as high-profile positions as these two men, the resulting fallout can be just as devastating. Maybe it’s a good time to remind them. - Karen Smith
And it’s exhibit one to the wage and hour lawsuit that has just been filed against your company. The Department of Labor (DOL) has announced the release of its first smartphone app – a timesheet that allows employees to keep track of their work hours and calculate how much they are owed each workweek. With this app, English and Spanish speaking employees can track regular work hours, break times, and overtime hours not only for themselves but for others. The app is currently compatible with the iPhone, iPod Touch, and iPad, but the DOL is exploring updates that could enable similar versions for other smartphone platforms and that would enable other pay features, such as the inclusion of tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials, and pay for regular days of rest. For those employees who do not have a compatible smartphone, the DOL has a printable work hours calendar available for use that not only provides employees with a means on which to independently record their work hours but also a primer on what their employers may be doing wrong. Of course, the DOL’s number is included at the bottom.
On March 3, in a Southern Mississippi federal court an HR manager was sentenced to six months home detention in a criminal proceeding that involved violation of federal immigration laws in the employment of undocumented workers. Jose Gonzalez had pled guilty in December 2009 to hiring hundreds of illegal aliens while serving as human resources manager for Howard Industries in Laurel, Mississippi. Although facing up to five years in prison, federal judge Keith Starrett decided home detention was a more appropriate penalty than imprisonment for Gonzalez. He was also fined $4000 for his actions. Howard Industries had already paid a $2.5 million fine for its role in these immigration employment offenses.
The U.S. Supreme Court has weighed in on an awaited decision in a case involving a “cat’s paw” theory of liability. In Staub v. Procter Hospital (http://case.lawmemo.com/us/staub.pdf) the Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”
The Sixth Circuit Federal Court of Appeals sitting in Cincinnati, yesterday upheld the conviction of two UAW union representatives accused of extortion in an extended strike at the General Motors assembly plant in Pontiac, Michigan. The court stated, “In the midst of the world’s current financial struggles, when the unemployment rate in this country fluctuates between 9 and 10 percent, it is somewhat laughable to argue that Douglas and Campbell did not demand a ‘thing of value’ when they demanded high-paying jobs for their cronies.” The two had insisted that GM hire two unqualified employees as a condition of ending a 87 day strike at the auto plant that had cost the company millions of dollars.