FMLA— HR’s Own Personal Migraine

FMLA—HR’s own personal migraine. (Migraine people, may have terrible headaches, but never so bad that they don’t know exactly how many days and hours of FMLA they have left.)

Successful management of FMLA is very much about careful attention to forms and schedules.

Stacie Caraway is a member of Miller & Martin PLLC in Chattanooga, Tennessee. Her remarks came at BLR’s Advanced Employment Issues Symposium, held recently in Nashville.

FMLA Documentation

Some FMLA conversations can be oral, but most need to be documented. For example, Caraway says, If an employee asks, “Am I eligible for FMLA leave?” you can respond orally; but if the person requests leave, you respond with documentation.
You may request, as appropriate:

•Adoption/Foster Care/ Birth Documentation. There’s no DOL form for this, Caraway says, because this is not a medical request, it’s a request for a report of a legal proceeding.
•Exigency documentation. Qualifying exigency statement and supporting documentation or DOL form WH-384
•Medical Certification. DOL Medical Certification form, regular (WH-380) or military (WH-385)
You will also use the following forms:
•Notice. DOL Notice of Eligibility and Rights & Responsibilities form (WH-381), attach to WH-380.
•GINA Disclosure attachment. (Technically, Caraway says, this is only required when the employee is requesting leave for his or her own medical condition. The statement will generally provide a safe harbor in the event that the medical professional reveals genetic information.)

Who Can Complete Certifications?

Who can complete an FMLA medical Certification form? It’s a long list, says Caraway. First, doctors of medicine or osteopathy authorized to practice medicine or surgery by the state in which the doctor practices and the following state-licensed professionals:

•Podiatrists
•Dentists
•Clinical psychologists
•Clinical social workers
•Optometrists
•Chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-rays to exists)
•Nurse practitioners
•Nurse-midwives
•Physicians’ Assistants (if functioning within the scope of their licensed practice)
•Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts
•Any other health care provider recognized by the employer or the employer’s group health plan benefits manager
•Also, any of those listed above who practice in other countries, if they are authorized to practice in accordance with the law of that country and are performing within the scope of their practice as defined by such law.

Can You Push Back Against Doctors?

You can push back if forms are incomplete or unclear, Caraway says. Generally, do not accept “unknowns,” she adds. (Duration and frequency “unknown.”) If you accept “unknowns,” and especially if you accept them because you do not want to bother the employee or the doctor, then you’re at fault when things spin out of control.

Remember, says Caraway, the regulations do clearly put the onus on the employee to provide a complete and clear form. If the employee doesn’t do that, you may deny leave.

Also check the form for internal consistency and be sure that an authorized person signed the form.

You can contact the health care provider directly as long as:

•You “clarify” and “authenticate” only; no requests for “additional information”
•No direct supervisor contact
•Give the employee a chance (and 7 calendar days) to “fix” the form (notify the employee in writing and indicate in writing what needs to be done to make the form acceptable)
•Execute a HIPAA release if required by health care provider.

Remember, warns Caraway, this point in the FMLA proceedings is your first and last chance to use second and third opinions for 12 months.

When Provider and Ailment Don’t Match

You can also push back, says Caraway, if the provider and the condition don’t match. For example, if the OB-GYN is certifying migraines or the podiatrist is certifying depression.

Today's HR Daily Advisor Tip: Stacie Caraway is a member of Miller & Martin PLLC in Chattanooga, Tennessee, Summarized & edited for use in this blog.

The Whitford Group, TheWhitfordGroup@aol.com, 704 298-2115

The 7 Types of Discrimination Your Managers and Supervisors Must Avoid

Discrimination, the dark side of fairness, plus an introduction to the famous "50/50": the compendium of 50 employment laws in 50 states.

Nondiscrimination is the legal side of fairness. Illegal discrimination comes in many forms, some obvious and overt, some subtle and hard to spot. Here's what to avoid:

1: Overt discrimination (I don't like Xs)
This is the out-in-the-open type of discrimination that most people think of when they hear the word. For example:
•I don't like to work with [women, men, old people, white people, black people, Asian people, disabled people].
•My customers don't like to deal with [women, men, old people, white people, black people, Asian people, disabled people].
•I don't like to hire [young women because they get pregnant and go on leave].
•I'm not promoting [anyone over 40—they don't have enough energy].

2: Stereotyping (Xs can't X)
Stereotyping usually takes the form of "Xs can't X."
•Women aren't strong enough.
•Men aren't compassionate enough.
•Xs aren't smart enough.

3: Patronizing (Xs shouldn't X)
This is a special form of stereotyping that seems well-intentioned, but is, in general, discriminatory. For example:
•Terry is active in the community; he/she won't want to relocate.
•Parents with young children shouldn't travel.
•Women shouldn't travel alone.
•Pregnant women can't [travel, lift, move, be stressed].

4: 'Avoidance' Discrimination
Some managers try to play a game of avoidance discrimination. They say, "If I can get in trouble talking to X, no problem. I'll never talk to X." Don't use this thinking; it is discriminatory and it won't fly.

5: Playing favorites (I always turn to my friends)
All managers have groups with whom they feel most comfortable. But if you always turn to that group when you need to hire, you are discriminating. And you've got friends at work with whom you're comfortable. If they always get the plum projects, bonuses, and promotions, you are discriminating.

6: De facto (I just never seem to hire Xs)
One of the more subtle forms of discrimination is called "de facto." In these situations, there are never any direct statements against hiring or promoting certain types of people—it just never seems to happen. For example, you're not against hiring women in a certain job, but although many qualified women have applied, of the last 50 hires, all 50 were men.

7: Reverse discrimination
Reverse discrimination means discrimination against someone as a result of your attempts not to discriminate against someone else. You probably don't have significant exposure unless you have a very strong, quota-type program favoring one protected group.
Today's HR Daily Advisor Tip: Summarized & edited for use in this blog.

The Whitford Group, TheWhitfordGroup@aol.com 704 298-2115

Religious Accommodation Requests—Deal Delicately, But Deal

Requests for accommodation on religious grounds are often tricky—What's a belief? What's a religion?—but they're going to come up and you've got to deal with them.

The following are some suggestions to help employers reduce the risk they will be accused of refusing to accommodate a sincerely held religious belief that affects an employee at work.

Tell your employees you will make reasonable efforts to accommodate their beliefs.
Provide specific instructions in your handbook for employees to use when asking for an accommodation.
Train your managers on how to handle requests for religious accommodation, including using an interactive process and considering alternatives to the particular accommodation requested if it would pose an undue hardship.
Don't assume you know what is and is not a religious belief or practice. (Not long ago, there was a plaintiff who argued that she belonged to the Church of Body Modification, meaning she had to wear multiple piercings; the court accepted that, even though she lost her case for other reasons. Another plaintiff argued that she wore a nose ring to conform to her Nuwaubian religion, but the jury didn't buy it.)
Stay away from narrow or inflexible requirements for information to determine whether an accommodation is needed for a religious belief or practice.
Consider adopting flexible leave and scheduling policies.
Carefully evaluate requests for exceptions to dress and grooming rules for religious reasons.
Allow workplace facilities to be used in the same manner for religious and nonreligious activities that are not related to work.
If you refuse an accommodation request, explain to the employee why it's not been granted.
Federal Law on Religious Accommodation
Title VII of the Civil Rights Act of 1964 prohibits religious discrimination by employers with 15 or more employees. To be more specific, under Title VII:
It is unlawful to discharge or otherwise discriminate against or harass applicants or employees on the basis of religion.
Employers must provide reasonable accommodation for an employee's religious beliefs or practices, unless it would cause the employer an undue hardship.
Employers may not discriminate against an individual based on his or her association with a person of a particular religion. For example, it is unlawful to discriminate against an employee who is a Christian because he or she is married to a Muslim.
It is unlawful for an employer to retaliate against an individual for opposing discriminatory practices, or for filing a charge, testifying, or participating in an investigation, hearing, or other proceeding under Title VII.

Exemptions

Title VII does permit religious corporations, associations, educational institutions, or societies to hire only individuals of a particular religion to perform work connected with the organization's activities.

What Is a Religious Practice?

According to the Equal Employment Opportunity Commission (EEOC) guidelines, religious practices include traditional religious beliefs, moral and ethical beliefs, and beliefs (including atheism) that individuals hold "with the strength of traditional religious views."

The fact that an individual's beliefs are not espoused by any religious group or are not accepted by the religious group to which the individual professes to belong will not determine whether the belief is a religious belief.

However, beliefs are not protected merely because they are sincerely held (e.g., many individuals adhere to a vegetarian diet for purely secular reasons). According to EEOC, religion typically includes ultimate ideas about "life, purpose, and death."
When Is Reasonable Accommodation Required?

Employers are required to reasonably accommodate religious practices unless accommodation would cause an "undue hardship" on the conduct of business.

Undue hardship may be claimed by an employer in situations where accommodating an employee's religious practices would require more than ordinary administrative costs. Undue hardship also may be shown if changing a bona fide seniority system to accommodate one employee's religious practices denies another employee the job or shift preference guaranteed by the seniority system.

Factors to be considered in determining whether an accommodation is an undue hardship include:

the size and nature of the business
the type and cost of the accommodation required
notice of the requested accommodation
An assumption that many more people with the same religious practices as the person being accommodated may also need accommodation is not evidence of undue hardship.
Options for reasonable accommodation include:
flexible arrival and departure times
floating or optional holidays
flexible work breaks
use of lunch time in exchange for early departure
staggered work hours
permitting an employee to make up time lost due to the observance of religious practices

Alternatives for accommodation might also include substituting workers, exchanging employee hours, planning flexible work schedules, transferring employees, and changing job assignments.

In order to facilitate accommodation, an employer should consider publicizing its policies regarding accommodation and voluntary substitution; promoting an atmosphere in which such substitutions are favorably regarded; or providing a central file, bulletin board, or other means for matching voluntary substitutes with positions for which substitutes are needed.

Today's HR Daily Advisor Tip: Attorney Regina Petty, Petty is with the San Diego office of law firm Fisher & Phillips, Summarized & edited or use in this blog.

The Whitford Group, TheWhitfordGroup@aol.com, 704 298-2115

No Background Screening? Call Yourself 'Defendant' and 3 Myths of Background Checking

Every employer has a legal duty to exercise due diligence in hiring, says attorney Lester Rosen. What If you don't do background screening? According to a recent California survey, Rosen says, employers lose 60 percent of negligent hiring cases with verdicts averaging about $3 million, and average settlements around $500,000 plus attorney fees.

An employer can be sued for negligent hiring if it hires someone who it knew, or in the exercise of reasonable care should have known, was dangerous, unsafe, dishonest, or unfit for the particular job.

Courts tend to assume that if you could have known, you should have known, says Rosen. So how much checking should you do? The jury will tell you, Rosen says.

Rosen, who is CEO of Employment Screening Resources in Novato, California, made his remarks at the SHRM Employment Law and Legislative Conference, held recently in Washington, DC.

EEOC Implications of Criminal Records

The EEOC says that you cannot automatically disqualify an applicant based upon a criminal conviction without a business justification, taking into account the nature and gravity of the offense, nature of the job, and time elapsed, says Rosen.

Also, he says, be aware that some states and cities have "banned the box" to promote a second chance for convicted felons. (That is, they don't permit a question about criminal records on application forms.) Their focus is getting people back to work, Rosen says.

Yes, you too probably want to give people who have made mistakes a fair chance, but you also have to promote a safe workplace.

What about arrest records? Arrests are of limited use, Rosen says. You need to locate and evaluate underlying behaviors if possible.

Application Forms

It is critical, Rosen says, to specifically ask if the applicant has been convicted, or has pending charges (unless regulated by a "ban the box" rule). In addition:

•Use the broadest legal language about both felonies and misdemeanors. Don't leave out misdemeanors, Rosen says. Misdemeanors sound like petty crimes, but some serious crimes are misdemeanors, for example, some forms of assault or stalking.
•Mention on the application form that a criminal conviction does not automatically eliminate a candidate from consideration.
•Also state that any material lie or omission can constitute grounds to terminate hiring or employment.

Past Employment Checks Are Critical

Past employment checks are as critical as criminal checks, Rosen says. Verify employment to determine where a person has been (even if you only get dates and job title), says Rosen. Otherwise you are hiring a stranger.

Look for unexplained gaps in past employment. Search out locations of former employers so you know where to search for criminal records. (Remember, Rosen says, there are over 10,000 courthouses in U.S.; you need to know where to search.)

If you can verify that a person was gainfully employed in the last 5-10 years, it is less likely that he or she spent long periods in custody, Rosen says.

Be aware, he adds, that about 40 states (including NC) now provide some form of immunity for past employers giving good faith references. But even if you don't succeed in getting reference information, just attempting to and documenting the effort demonstrates due diligence.

Parting Shot

To indicate the kind of people you'll be dealing with if you don't do checks, Rosen told of the client who, when admitting his guilt for a murder, said, "but look at all the people I haven't killed."


The Three Due Diligence Myths of Background Screening

The biggest myth in background checking is that there is some grand online database to check and then you've done your due diligence. Not so, says attorney Lester Rosen.

Here are three of his myths:

Background Checks Myth 1. There is a national database available to private employers for checking criminal records or false credentials, such as education or employment.

Contrary to popular belief, there is no such national database, despite some advertisers claims to the contrary, says Rosen.
Furthermore, he says, FBI fingerprint checks are only available when mandated by law (e.g. for teachers and child care workers).
Unfortunately, he adds, the primary method for obtaining criminal records is to physically look at each relevant courthouse! And there are about 10,000 courthouses in America with court records in over 3,200 jurisdictions.

Beware of using commercial databases as a primary tool for records checks, Rosen cautions. There are substantial issues with accuracy, completeness, and timeliness, and false positives and false negatives are possible. They can be useful as a back-up or secondary tool. In some states, use is very limited (e.g., CA, NY & TX).

If you do get "hits" with such a system, the hit should be re-verified at the courthouse for accuracy and current status, he adds.

Background Checks Myth 2. Due diligence means perfection.

Unless set by a statute for your industry, Rosen says, due diligence is a moving target that is determined by a jury, based on evidence in the trial concerning injury, foreseeable risk, duty of care, and causation.

Nevertheless, to pass due diligence scrutiny, you just need to show that you did the best that you could be expected to do, not that you did a perfect investigation, Rosen says.

Naturally, he adds, high risk employers, such as firms that send workers into homes, will have a higher duty of care. Workers in uniform have the "color of authority," Rosen says.

If you haven't done due diligence, Rosen says, typical defenses won't help you. For example, don't try to claim that:

•A background check would not have revealed any red flags or lack of causation
•Conducting a check would have been too costly
•The applicant lied
•Others firms in our industry do not conduct background checks

Background Checks Myth 3. You can automatically disqualify an applicant based on a criminal conviction without a business justification.

You may not automatically deny employment based on a criminal conviction, says Rosen. The EEOC requires that you take into account the nature and gravity of the offense, nature of the job, and time elapsed.

However, if the person lied on the application, then the falsehood can be the grounds to deny employment.

Today's HR Daily Advisor Tip: Attorney Lester Rosen, Summarized and Edited for use in this blog.

The Whitford Group, TheWhitfordGroup, 704 298-2115

Careless Documentation: Key Evidence Against You in Court

If you're not careful with your documentation, says Attorney Allison West, you're probably creating evidence that your employee's attorney can use against you in court. In today's Advisor, her do's and don'ts.

Employment law attorneys aren't allowed to say "document," West says; they are always required to say "document, document, document." There's a good reason for using the famous three words, she adds, because documentation is that important:

•It gives you credibility.
•It's how you show the world that you did what you say you did.
•It allows you the opportunity to see your decisions in black and white.
•It shows that you treated employees with fairness and consistency.
•It's Exhibit A when you go to trial.

West, principal at Employment Practices Specialists in Pacifica, California, offered her suggestions at SHRM's annual conference and exhibition, held in Las Vegas.

To move toward better documentation, start by thinking through who will be looking at your documents down the road, says West. It could be a fact finder, an investigator from the EEOC, or a representative of a state agency.

Or it could be a jury. And who sits on a jury? People who will be comparing your behavior to that of their own employer and to what they think is right. ("I had a manager just like that—and now I can get back at him.")

Do's, Don'ts, and Rules for Bulletproof Documentation
West offers the following Do's and Don'ts for documentation.
Do create contemporaneous documents. Do documentation at or around the time something happens. If you wait 3 weeks, it's a little suspect, West says. And if there's no documentation, it's easy for the opposing attorney to beat you back.

Don't ever backdate documents. If you are documenting late, fine, but don't backdate. That will be found out, and you can be picked on and chopped up during cross-examination.

Do include a full date. West notes that if there is no date at all, it's very suspect. Especially under cross-examination, witnesses will find it very hard to state a date with accuracy.

West offered the case of a worker who was terminated during pregnancy leave. The only document to support the company's contention that her termination was part of a RIF was one sheet of paper, lined, yellow, 8 1/2 by 11.The page had three different entries in different colored inks, including one that had the employee's initials. And it had a day and date, but no year.

It's hard to convince anyone that that's a meaningful document. Remember, says West, that when you are in court, this document is going to be there, blown up to the size of New Jersey.

So, she says, do include the full date, and include full names at least once. After that, initials or first names are OK.

Do get the employee's signature. When possible, obtain the employee's signature to verify that you had the discussion. You'd like a way to show that you have shown the document to the person.
Don't use inflammatory phrases. For example:

•I thought someone like you would be above this
•Everyone on the team gets it but you
•You should know better

Be complete and unambiguous. For example, "You'd better turn things around, or else" just doesn't mean much.

Don't make inappropriate conclusions of fact or law. For example, "This is the worst case of harassment I've seen." Or employee Sandy says: 'Chris is making me uncomfortable." Manager documents: "Sandy is being harassed by Chris."

There's side problem with this, says West. Now the employee now thinks: "Oh, I thought I was just uncomfortable, but now I realize I'm being harassed. Hmmm."

The easiest thing to do, West says, is to document the employee's words, and, in conversation, to mirror back employees' words: "I'm sorry it's making you uncomfortable."

Don't use generalities, overstatements, and exaggerations. For example:

•Nothing seems to get through to you.
•You're always late, you don't care about your job.
•It appears you don't care.
These statements are too vague, says West.
Don't use absolute expressions unless completely accurate. For example:

"You are always late." "Actually, I was on time today," the employee will say. This completely takes the wind out of your sails.
"You never volunteer to stay late." "Yes, I did on March 2."

"Always," "every time," "invariably," and similar words cast a negative tone, are not accurate, and suggest bias. Instead, says West, use "often," "typically," etc.

Today's HR Daily Advisor Tip: Attorney Allison West

The Whitford Group, TheWhitfordGroup@aol.com, 704 298-2115

Non-Competes Must Be Tied to Actual Competitive Threat

Last month, the Virginia Supreme Court held that a non-competition provision in an employment agreement was invalid because it prohibited the employee from working for a competitor in any capacity.

In Home Paramount Pest Control Cos. v. Shaffer, the court stated that in order to be enforceable, the agreement could only prohibit the former employee from engaging in activities for a new employer that actually competed against his former employer. This ruling overturned prior Virginia court decisions that upheld the broader restrictions.

The Virginia decision echoes similar recent holdings in North Carolina and other states. Employers with non-competes that simply prevent the employee from going to work for a competitor are increasingly likely to face claims that the restrictions are overbroad and unenforceable. Similarly, restrictions against soliciting any of the former employer's customers are likely to be invalidated if they are not limited to customers with whom the employee worked, or had access to confidential information regarding.

These cases point out the need to carefully tailor restrictive covenants to address the actual competitive threat posed by the particular employee. In the Carolinas and Virginia, these limits are especially important, because courts in these states generally will not re-write restrictions found to be overbroad. The covenants stand or fall based on their existing terms.

Employers with older employment contracts containing non-competes should review these documents to determine if they conform to these evolving legal standards. If not, the employers should consider replacing the older language with new provisions intended to narrow and better define the scope of actual competitive activity prohibited under the agreements.

ParkerPoe, EmployNews, Issue 647, December 2, 2011

The Whitford Group, TheWhitordGroup@aol.com, 704 298-2115

Apparent Tampering With Videotape Leads to Crippling of Employer's Defense to Discrimination Claim

When an employer learns of a threatened or filed claim against it by a current or former employee, one of its first reactions should be to make certain that it is preserving all evidence potentially relevant to the case.

This action is ordinarily accomplished through issuance of a "litigation hold" instructing all persons with possible relevant information to make sure it is maintained, even if such preservation is contrary to normal company policy regarding retention and destruction of paper or electronic records. While a seemingly simple step, a recent decision by a federal court in a discrimination claim brought by the EEOC demonstrates the disastrous consequences of failure to take these steps.

Last month in EEOC v. Dillon Cos., a federal district court in Colorado imposed harsh sanctions against an employer resulting from the destruction of a videotape that supposedly corroborated its legitimate business reasons for terminating an employee who claimed disability discrimination.

The security camera tape supposedly captured a confrontation where the plaintiff pushed his manager. The employer later contended that the master tape had been tampered with by an unknown person, and that the three copies made had disappeared.

In response, the district court imposed serious sanctions on the employer. The court concluded that the tape had been destroyed in bad faith, triggering an "adverse inference instruction" to the jury that it should assume that the videotape would have shown conduct contradicting the employer's version of events. Also, the employer was not permitted to introduce supporting testimony of other employees who witnessed the confrontation.

Based on these sanctions, the employer has very little chance of prevailing at trial, and may be forced to settle the claim on terms favorable to the plaintiff. The clear lesson from this example is that evidence preservation is absolutely crucial to the successful defense of any legal claim, including employment disputes.

Human resources, legal counsel, IT, and other areas with responsibility over the dispute and information collection must work in concert to make certain that the employer cannot be accused of trying to hide damaging evidence.

ParkerPoe, EmployNews, Issue 650, December 30, 2011

The Whitford Group, TheWhitfordGroup@aol.com, 704 298-2115

The Six Ways Attorneys Will Attack Your Investigation

Your employee's attorney's job is to undermine your investigation and point out its weaknesses. Below are the six standard attacks they'll use.

You must proactively prepare to defend your investigation and the decisions you make along the way against the following types of attack.

•The "Neutrality" Attack
•The "Time" Attack
•The "Fair &Thorough" Attack
•The "Taint Free" Attack
•The "Retaliation" Attack
•The "Burden to Remedy" Attack

The Neutrality Attack:

The investigation was not conducted by neutral, trained investigator.

Neutrality can be undermined when the person conducting the investigation:

•Knows either party too well
•Has repeatedly investigated the parties
•Shows a pattern for siding with the employer
•Has disciplined the parties for unrelated claims
•Is subject to job performance evaluations from the parties
•Is privy to private information unrelated to the claim
•Is being "managed" by counsel or management

Suggestion: you should consider bringing in an outside Investigator when:

•No one in-house has been trained to conduct investigations
•The person investigated is a high ranking executive or a member of HR
•The complainant asks for a neutral investigator
•You're opening Pandora's Box (use neutral attorney/investigator)

The Time Attack:

The investigation was not conducted "promptly.
Starting an investigation within one day is ideal, and within one week is crucial.

•The investigation can be underdetermined when there are unnecessary, unreasonable or unexplained delays. HR on vacation is not an excuse.
•Delays create a hardship on the parties. Justify and explain delays.
•Explain significant delays between "Legal Notice" and the onset of an investigation.
•Minimize hardships.
•Suspension of the accused should be with pay.
•Consider having more than one or two people trained to conduct an investigation.

Be sure that:

•You have policies that explain to employees how to make a complaint.
•You have intake procedures for complaints and forms available for making complaints.
•Managers are trained about what to do/say when an employee complains to them.

The Fair & Thorough Attack:

The investigation was not fair to both sides.
The investigation should be thorough with questions asked of parties and witnesses, giving the accused an opportunity to respond to additional information/allegations that surface.

•Don't promise "confidentiality" to parties.
•Don't prejudge beforehand. It is usually not "what you expect."
•Justify or explain why, if one party was not interviewed.
•The witness list should be "organic" and derived from investigatory interviews.
•Interview witnesses on both sides and ask parties about witnesses that can support or corroborate their statements.
•Justify or explain why any witnesses were not interviewed/ interviewed by phone.
•If "everyone" was interviewed, justify or explain why.
•Support credibility determinations.
•Questions should be open ended, not leading. Interviewer must ask "difficult" Qs.
•Evidence that is not available or that was destroyed needs to be explained.
•If "scope" of the investigation is limited, explain and justify questions or information left out for this reason.

The investigation should be well documented. If it is not, it looks like the company may be hiding something. Remember, the investigation is most likely a "defense" in litigation. In this case, privilege is waived as to all statements and evidence presented to the investigator. Nothing is confidential in this case, including the investigation conversations, evidence and conclusions—even if the investigator is an attorney.

The Taint Free Attack

The investigation was not protected from contamination.
The investigation can be "tainted" if:

•The parties and witnesses are not reminded by the investigator to refrain from discussing the investigation with anyone other than the investigator
•The investigation was conducted in an open, non-private setting
•If the investigator discussed the investigation with anyone other than counsel, or specifically delineated individuals
•If the parties discussed the events with any witnesses before they were interviewed
•If the rumor mill or gossip has not been contained
•If the several parties colluded before bringing a claim
•Evidence was purposely destroyed or overwritten

The 'Retaliation' Attack:

One of the parties or witnesses was not protected from retaliation during investigations and afterwards.

Retaliation is its own "complaint" and must be investigated as an independent claim that violates the law and company policy. Investigators can defend against the "retaliation" attack by:

•Suspending the accused, with pay, when necessary, pending the investigation's conclusions (ensuring that the accused knows and understands that this is not a disciplinary action)
•Reminding the parties and witnesses during the interview about the company's policy that prohibits retaliation and ensuring and understanding of the type of conduct that may be construed as retaliation
•Asking parties and witnesses if they fear retaliation or feel they are being retaliated against
•Determining if there was a history of abuse, stalking, threats of violence, damage to property and, if so, taking appropriate security measures
•Having parties and witnesses contact the investigator if they experience retaliation.

Even when you are trying to "protect" the complainant, he or she should never be the one sent home, transferred, or suspended pending an investigation because he or she will claim that this was retaliatory punishment for making the claim. If the complainant insists on staying home, get it in writing that he or she is the one who wanted this and that he or she does not consider it retaliation.

The Burden to Remedy Attack:

The employer's response was not "reasonably calculated" to halt the harassment.

If you are asked to make conclusions and recommendations for disciplinary actions, remember:

•Remedial actions that may be taken by employers include counseling, written warnings, reprimands, probation, suspension, demotion, a shift in the job duties or job location of the alleged perpetrator, training sessions, and termination.
•Remedies should not be pretext to cover-up other wrongdoing.
•The employee should not be terminated for "other wrongdoings" to avoid an internal finding of harassment.
•An employer's ignoring remedial actions recommended by an investigator can demonstrate a failure to meet the "burden to remedy."
•Ongoing misconduct demonstrates a failure to meet the "burden to remedy."
•Damages will accrue from the time of legal notice and are not mitigated unless the harassment stops.

Even when the investigation conclusion does not find that the allegations are valid, it is still acceptable to recommend "refresher training" for the accused. This may not be deemed "remedial" or "disciplinary," but may ensure that inappropriate or non-managerial conduct does not happen again.

It's critical, to have a policy on investigations. Of course, for any company, there are a lot of critical policies. What about yours? Detailed? Accurate? Up to date? In most companies, there are 50 or so policies that need regular updating (or maybe need to be written). It's easy to let it slide, but you can't afford to—your policies are your only hope for consistent and compliant management that avoids lawsuits.

Jody Katz Pritikin, an investigator and seminar leader for Katz Consulting & Associates in Santa Monica California and summarized by The Whitford Group for this blog. Today's HR Daily Advisor Tip

If you need investigative assistance or help with policies and procedures, please contact me at:
TheWhitfordGroup@aol.com or 704 298-2115

Six Essential Skills of HR Management

The 6 Essential Skills of HR Management—How Many Do You Have?

By Stephen D. Bruce, PHR
Managing Editor, HR Daily Advisor

HR Key Skill #1: Organization
HR management requires an orderly approach. Organized files, strong time management skills, and personal efficiency are key to successful HR function. As readers well know, there's a heavy load of regular work and that's to say nothing of the "emergencies." You have to make time and you can't be sloppy.

HR Key Skill #2: Multitasking
On any day, an HR professional will deal with an employee's personal issue one minute, a benefit claim the next, and a recruiting strategy for a hard-to-fill job the minute after. Priorities and business needs to move fast and change fast, and colleague A who needs something doesn't much care if you're already helping colleague B. You need to be able to handle it all, all at once.

HR Key Skill #3: Discretion and Business Ethics
HR professionals are the conscience of the company, as well as the keepers of confidential information. You are the corporate watchdogs, and you need the strength to push back when things aren't right. You have to be absolute in guarding the confidentiality of documents and information entrusted to you.

HR Key Skill #4: Dual Focus
HR professionals need to consider the needs of both employees and management. There are times you must make decisions to protect the individual, and other times when you protect the organization, its culture, and values. Going in either direction, you may have information you can't share. It's part of the territory.

HR Key Skill #5: Employee Trust
Employees expect HR professionals to advocate for their concerns, yet you must also enforce top management's policies. The HR professional who can pull off this delicate balancing act wins trust from all concerned.

HR Key Skill #6: Fairness
Successful HR professionals demonstrate fairness. This means that communication is clear, that peoples' voices are heard, that laws and policies are followed consistently, and that privacy and respect is maintained.

Above are some of the things an HR Professional does on a daily basis, not including the completion of projects like employee handbooks, job descriptions, developing policies and procedures and supervisory & management training. Let's not leave out, ESC & EEOC claims, FMLA/ADA/Workers' Compensation and talent management. Basically, an HR Professional's work is never done.

For assistance in any item mentioned above, please call or email me at:

TheWhitfordGroup@aol.com
704 298-2115

5 Ways You Attract the Attention of Plaintiffs' Attorneys

It's not that hard to avoid the actions that tempt plaintiffs' attorneys. There are at least five things that employers do that "make a plaintiffs' attorneys day."

1. Timing is Bad

When there's an internal protected complaint followed closely in time by termination, that's pretty easy for a plaintiffs' attorney to exploit. How long is long enough to wait after an internal protected complaint? Wait until either:

•An undeniable, verifiable reason for termination arises, or
•The complaint is forgotten. (If you are still thinking about it, you haven't waited long enough, says Warner.)

2. Internal Investigation Was Superficial

Some of the problems with investigations are:

•The employer just asked the harasser what happened and called it a day
•The investigations took too long
•The investigation was not documented
•No feedback was given to the complaining employee
•Relevant witnesses were not interviewed
•No corrective action was taken (especially a problem if the conduct is admitted)
•The employer responded to other complaints more earnestly (especially bad if the company does a full-blown investigation against the complainer while doing a cursory investigation of his or her complaint)
•Even worse—No Investigation!

Of course, it's worse if there's no investigation at all. Or of the employer's response is a dismissive "Oh, that's just the way he/she is."

3. EEOC Position Statement Not Well Prepared

One of the employer mistakes that makes a plaintiff's attorneys day is a casual response to the EEOC. The plaintiff's attorney will gather all the EEOC documents at the beginning of the case, and watch carefully. If anything comes up in testimony that contradicts what you told the EEOC, the attorney will pounce."

Often Seen Problems:

•The charge is not investigated at all. This doesn't look good.
•The investigation is too cursory. For example your response is "We have a policy and we didn't discriminate." If I'm an EEOC investigator, I'm having a field day with that statement.
•Statements turn out to be not quite right. For example, employer alleges a "pattern" of absence or "extensive" violations of the absence policy when the company's records show two absences.
•EEOC response fails to refute the conduct. For example, say that the employee complained to the EEOC that she was harassed over many months. Then looking at the company's response to the EEOC and it doesn't say, "It didn't happen. It wasn't severe and pervasive. We haven't violated the law."

You have to say that! "Put that in your response and make the attorney prove their case.

•Even Worse –Your Response Insults EEOC! For example, in your rebuttal letter, you say, "I don't know how your agency could arrive at this finding, your investigation was all wrong, you didn't talk to the right people."
•You gave phone numbers to EEOC. EEOC asks for contact information, but if you don't give it, they typically won't push. They rarely contact individual employees. "But if you give them contact information, guess what, they are going to use it. They'll call all those people, and ask them, ‘Might you have been a victim?' So use initials and give demographic information only. Don't include address and phone numbers."

4. Employer Issues a Gag Order

Employers may be tempted to issue a statement such as, "Jane has filed an EEOC charge and you are not to talk to her or her attorney. You must report any contact to management."
Or else what? Your gag order implies adverse action for violating the directive. Employees think they are going to be fired if they disobey.

An attorney will have this e-mail in big print, Exhibit A. And ask, Why did you send this e-mail? People have a legitimate right to bring a concern. Does this imply you might retaliate? So what are you trying to hide?

Bottom line, the gag order looks like witness intimidation. You're "interfering with an investigation." That will get the EEOC interested in talking to witnesses.

5. Employee with Good Evaluation Fired for Performance

It's always going to be a problem for employers when an employee who was fired for poor performance has a recent "good" evaluation in the file.

•Worse—there's nothing negative in the file.
•Even worse—the employee got a bonus or raise.
•Still worse—the employee got a glowing letter of recommendation.
•Worse yet—the letter of recommendation is from the very person who had the issue with performance.

In one case, a client was allegedly fired for poor performance and her performance review actually said, "This employee walks on water."

It's critically important to have an up to date employee handbook, job descriptions and an appraisal system that is fair and consistently utilized. Equally important, is that your supervisors and managers MUST be trained on the proper use of these tools or they can be your "undoing".
The Whitford Group provides all of the above plus much more, for example, writing an effective position statement for the EEOC. Please contact us if you or any one you know needs help with these issues.
TheWhitfordGroup@aol.com or 704 215-2115

Above article was edited for this blog. Today's HR Daily Advisor Tip: Whitney Warner, SPHR is the founding partner of Moody and Warner PC in Albuquerque, New Mexico

Employer Responsible for $250K in Medical Expenses

No Stop-Loss Coverage Where Employer Failed to Provide COBRA Notice Following Qualifying Event

Under COBRA, an employee who loses health insurance coverage as a result of a qualifying event must be given an opportunity to continue coverage at his or her own expense. The employer generally is responsible for identifying when a qualifying event occurs and providing the employee with a timely COBRA election notice. Continuing an employee's coverage as an active employee outside of COBRA after a qualifying event may leave the employer paying out of pocket for medical expenses incurred by an employee.

For example, as a result of a Tennessee federal district court's decision in Clarcor, Inc. v. Madison Nat. Life Ins. Co., an employer will pay over $250,000 in uninsured medical expenses for an employee who was not given proper COBRA election notice when she was unable to return to work following the expiration of her FMLA leave. When the employee did not return to work after FMLA leave, contrary to the terms of the medical plan, the employer continued her medical coverage as an active employee while she was on short-term disability leave for another six months, at which time it offered her COBRA coverage.

The employer submitted a claim to its stop-loss carrier for reimbursement of medical expenses incurred by the employee while on STD leave. In turn, the carrier refused to reimburse the employer for expenses incurred after FMLA leave, on the grounds that the employee should have been offered COBRA upon the expiration of her FMLA leave, and that the policy excluded expenses where COBRA notice was not timely provided. The court agreed with the stop-loss carrier, holding that the employee was ineligible for coverage after her FMLA leave ended except through COBRA, and held that the stop-loss carrier did not have to pay the claim.

This decision highlights the importance of being familiar with and following the provisions of medical plan language with respect to eligibility for coverage in order to identify qualifying events, and to avoid exclusions of coverage under either stop-loss contracts or fully insured medical plans when an employee remains employed, but is no longer eligible for coverage outside of COBRA

Parker Poe, EmployNews, Issue 641, October 14, 2011

If you need assistance with your COBRA administration, please contact The Whitford Group or your agent immediately. TheWhitfordGroup@aol.com 704 298-2115

The 4 Most Serious Sins of Documentation

NOTE: Don't miss "Jan's Tips" at the end of this article.

Rule number one in documentation, says attorney Allison West, is to include all the details, but you have to ignore that rule because of rule number two—be concise.

When doing your documentation, it's important to offer up all the facts, says West. Paper is cheap, she adds. However, at the same time, don't be so wordy that you ignore rule number two, which requires documentation to be concise.

West, principal at Employment Practices Specialists in Pacifica, California, offered her suggestions at SHRM's annual conference and exhibition, held recently in Las Vegas. Here are her tips on bulletproof documentation:

Avoid 'As you know' Memos

When you write "As you know," you're skimping on the details because you have previously discussed issues. That's dangerous, says West. "As you know" memos are typically vague and ambiguous, and they are open to interpretation. Bulletproofing documentation means including details and important facts each time you write. For example:

"As you know, we have discussed your attendance on numerous occasions. Each time you stated you would try harder."
This is a typical "as you know" memo. It means something to the sender, but not to other readers (like juries or federal agents).

It needs details, says West.
•What were the problems?
•When were the discussions?
•What expectations were discussed?
•What follow-up was planned?

Avoid sarcasm

Sarcasm is never going to look good to later reviewers of your documents. For example:

•You might actually be the only person in the history of our company to never get a performance bonus.
•Clearly you don't care.
•Do you really want to work here?
•I am not surprised by the poor quality of your work product.

Out of context, these comments just look mean. It's always better to write a straightforward presentation of the facts of the situation.

Avoid Starting Sentences with 'You'

When you start sentences with "you," it's probably not going to be a straightforward presentation. For example:

•You don't carry your load.
•You are not committed to your job.

A better approach from West: "I noticed on three occasions your team members asked you to assist them with updating the newsletter mailing list. Each time you refused. You may not realize that each time you say "no" without any explanation or fail to carry an even workload, the team members get frustrated and are forced to take on extra work. How would you feel in their shoes?"

Avoid Editorializing

Again, it's better to stick with the facts, says West. For example, say Beth explained she was late, again, because of car problems. You write:

•Beth is late again. More lame excuses.

Or say that Jorge is struggling to understand the new accounts payable software.

You write:
•Jorge is unwilling to put in the time to master the software.

Editorializing hurts the writer's credibility, shows bias, and indicates that the writer is uncaring about the employee's issues or success. "The jury will snarl at you," West says.

Instead:
•Stick with the facts
•Stick to a chronological time line
•Neutralize your tone
•Keep emotion out!

Summarized from Today’s HR Tip, written by Allison West, Attorney at Law

Jan’s Tips:

1.Avoid the use of acronyms unless you have identified their meaning with the first usage in the write up. People outside of your industry won't know what they mean and may skip over those entries or decide against you because your write up is too hard to understand. Believe me, it happens!

2.Avoid as much “he said, she said” as you can and still get the point across. People who do write ups often fail to identify the “he and she” to whom they are referring as the write up goes on. It’s confusing to the reader and quite frankly, boring.

3.Follow a chronological time line when detailing events.

4.Ensure you cite specific policy and procedure violations (employee handbook, job descriptions, etc.) and the impact the violation had on the company.

5.If this is not a terminating event, ensure you develop (with your employee) an action plan for improvement. Be specific, make it measurable and please, please follow up!

6.FOLLOW UP. Write ups are worthless without follow up. Not only will this employee not take you seriously your other employees won’t either.

7.Remember, it is highly unlikely that you and your employee will be the ONLY ones to read this write up. Regulatory agencies, attorneys and courts may also read it at some point. Make sure it will make sense four or six months from now.

If you or you know someone who needs assistance with any type of corrective action or other HR issues, contact The Whitford Group at TheWhitfordGroup@aol.com or 704 298-2115.

Lawsuit Avoidance Rule #1—Reject Troublemakers Up Front

The best and easiest way to avoid employee lawsuits is don't hire troublemakers. But that's easier said than done.

First, there's the positive side—hire people that fit, that are well-qualified, and that will be happy in their jobs. "Happy people don't sue," some experts say.

And there's the other side of the coin—avoiding the troublemakers who are either itching for an excuse to sue, or who are likely to do things that make others sue. (To harass, for example.)

Many managers take the care necessary to conduct meaningful interviews and then drop the ball on background checking. Time after time, managers who trust their intuitions find out too late that they've made a mistake. Their new hire—who was impressive during the interview—turns out to be dishonest, undependable, drug-addicted, incompetent or, worse, violent.

Identify and Reject

Fortunately, most problem employees can be identified and weeded out during the hiring process. And it's far better to keep them out of your organization than to have to deal with them after they are hired.

More often than not, says one attorney, when he goes back into the work history of an employee who has sued or who has caused a lawsuit, he finds clear evidence of prior problems:

•Employees who sue often have sued before.
•Employees who commit violence often have committed violent acts in the past.
•Employees who harass or who make trouble often have harassed or made trouble for other employers.

Evidence Is Often in Plain Sight

Often evidence indicating a troublemaker is right on the application or the resume. There may be gaps in the employment history, or a number of jobs that lasted only a few months, or "red flag" reasons for leaving prior jobs, such as "poor management," or "disagreed with policies." Perhaps there are good explanations, but these are warning signs—follow them up with thorough questioning during your selection process.

Evidence Is Readily Available

In other cases, information that would cause you to reject an applicant is readily available from outside sources—phone calls to former supervisors and routine background checks.

Listen During the Interview

Candidate answers during the interview often raise red flags. Do you get vague answers regarding duties and accomplishments? Is the candidate unable to explain gaps in employment or reasons for leaving jobs? Follow through for details. Ask what, why, who, where, when questions.

Liability for Poor Hiring Decisions

What liability might you face if you don't take due care in the hiring process?

Negligent hiring.

If you knew, or should have known, that an applicant was unfit for a job or had a propensity toward violence, but you hired the person regardless and the person harms someone, the person who is hurt may sue you for negligent hiring.

Negligent retention.

Similarly, if you become aware that a current employee is violent and you fail to discharge the person, you may be liable for negligent retention.

The best way to avoid liability for poor hiring decisions is to take extreme care in the hiring process.

Criminal Background Checks

Both federal and some state laws require criminal background checks for certain jobs.

Federal law. Federal law requires:

•Background checks for applicants for childcare jobs with federal agencies and contractors. This requirement covers jobs in education, day care, foster care, residential care, and rehabilitative care.
•Fingerprinting of securities exchange employees, including dealers and brokers.
•Background checks on truck drivers and on employees who will have access to nuclear power plants.

State law. Some states specifically require employers to run criminal background checks on job applicants.

States have traditionally required background checks on law enforcement applicants, security personnel, and teachers. But since the early 90s, state legislatures have widened the scope of jobs for which checks are required, adding jobs that involve work with vulnerable populations, such as children, the developmentally disabled, and incapacitated adults. Check the laws of your state.

To avoid hiring troublemakers:
• Do consistent, detailed reference checks
•Be sure to talk to current or former direct supervisors.
•Explore the red flags uncovered on the application and during the interview.
•Stick with questions about performance on the job.
•Engage a professional agency to conduct background checks appropriate to the position.

One of the most effective checks you can do is just to compare all the information you have. Are the resume and application consistent with each other and with information gained during background checks, reference checks, and interviews?

If you have trouble getting former employers to open up, follow these tips:•

•Have the employee sign a waiver. Fax the waiver to the person you need to talk to.
•Enlist the candidate's help. Have the candidate call the person and request that he or she speak to you.
•Play hardball. Tell the person that you won't be able to consider the applicant unless you can get a reference.
•Quote job reference immunity laws. Over half the states have laws protecting employers from liability for statements made in job references, as long as the information is true, provided in good faith, and devoid of malice.

Those statutes are designed to encourage employers to share useful information with one another, rather than giving only names, positions, and salary levels. If your state has such a law, let applicants' former employers know about it when you interview them.

Can You Avoid All Troublemakers?

Probably not. But even if a few slip through, it's worth the effort if you keep some out of your organization. At the very least, you'll establish your good-faith effort to screen candidates.

You do not want to be on the witness stand explaining how you never quite got around to doing the reference checks on one of your new employees who just committed a violent act—one that he or she had committed before at a former place of employment.

You Never Know

One attorney tells of a client who was being sued by an employee the client had just fired. Although the termination was for poor performance, the former employee claimed that he was fired because he had reported regulatory violations to the authorities (which he had).

In preparing for the case, the attorney contacted five former employers. All five had been victims of the same scenario—the person would, in each case, get hired, perform poorly, make a complaint, get fired, and then sue!

Obviously, not one of these employers had bothered with reference checks on this employee.

Troublemakers' FavoriteTarget—FMLA

If you do hire a troublemaker, one area where you're almost sure to have problems is Family and Medical Leave. Slackers love open-ended intermittent leave—their ticket to get off work whenever they want to—unless you've established iron-clad policies and procedures.

It's an almost overwhelming task to keep up with the FMLA, and the recent, far-reaching changes haven't helped. And that's to say nothing of the devilish complexity of marrying FMLA with ADA and workers' comp.

Summarized from Today's HR Daily Advisor Tip:

The Whitford Group can assist you in developing a comprehensive hiring process and train your supervisors and managers in effective techniques to help them hire the best employees first.
TheWhitfordGroup@aol.com
704 298-2115

Supreme Court Says Oral Complaint Triggers FLSA's Anti-Retaliation Protections

Under the Fair Labor Standards Act, employers are prohibited from retaliating against an employee who complains about wage payment issues. Some employers adopt policies requiring that all complaints be submitted in writing, often for the purpose of specifying the employee's exact grievances.

The U.S. Supreme Court concluded that the anti-retaliation provisions of the FLSA are triggered when an employee makes either an oral or written complaint to his or her employer.

In Kasten v. Saint-Gobain Performance Plastics Corp., the plaintiff told his supervisor that he was considering a lawsuit against the company because its placement of the time clock did not allow payment of time spent donning and doffing protective clothing. He alleged that he was terminated as a result of the oral complaint.

The Seventh Circuit dismissed the retaliation claim, citing language in the FLSA that ties its anti-retaliation protections to employees who "file" complaints with their employers. The defendant contended that this language means that in order to be protected from retaliation, the employee must make a more formal complaint to the employer.

The Supreme Court rejected this reasoning, reversing the lower court's decision. The 6-2 majority concluded that as long as the complaint is sufficiently clear and detailed enough for the employer to understand, it may be protected under the FLSA. Nothing in the statute requires that the complaint be submitted in writing.
This decision continues a string of Court decisions that expansively read anti-retaliation provisions of federal employment laws. The Supreme Court has repeatedly rejected narrow readings of these laws in favor of protections for employees who exercise their legal rights.

For procedural reasons, the Court declined to consider the defendant's contentions that the FLSA's retaliation provisions only cover employees who have made a complaint to a governmental agency. For now, employers should understand that any form of complaint may trigger these protections, even if the employer requires or prefers that they be submitted in writing.

Posted by The Whitford Group, 704 298-2115

ParkerPoe, EmployNews, Issue 612, March 25, 2011

North Carolina and South Carolina Immigration Alert: E-Verify Mandatory for Certain Employers

Joining the recent wave of states introducing stricter immigration legislation in the wake of the United States Supreme Court's Whiting decision in May, both North Carolina and South Carolina will require employers to register and participate in the federal government's electronic verification system, known as "E-Verify". E-Verify is otherwise a voluntary federal system that supplements the paper I-9 employment verification system.

North Carolina: New E-Verify Act
Governor Perdue signed a bill requiring certain employers to verify the employment eligibility of all new hires through E-Verify. The North Carolina law requires all counties and municipalities to start using E-Verify effective October 1, 2011. (NC state agencies are already required to use E-Verify). All other employers with over 24 employees in North Carolina must start using E-Verify according to the following schedule: October 1, 2012 for employers with 500 or more employees; January 1, 2013 for employers with 100 to 499 employees; and July 1, 2013 for employers with 25 to 99employees. The law exempts seasonal temporary employees who are employed for 90 or fewer days during a 12-month period.

The new law allows any person with a good faith belief that an employer has violated the law to report complaints to the Commissioner of Labor. The Commissioner must then investigate the complaint to determine whether an employer has violated the law and shall hold a hearing to determine if a violation has occurred. If in the course of the investigation the Commissioner concludes that there is a reasonable likelihood that an employee is an unauthorized alien, the Commissioner must notify U.S. Immigration and Customs Enforcement and local law enforcement agencies.

Civil penalties may be assessed upon the issuance of an order as follows: (a) for a first violation, an employer must file an affidavit within three business days after the order that the employer has, after consultation with the employee, requested a verification of work authorization through E-Verify; (b) for a second violation, the employer must file the affidavit and pay a civil penalty of $1,000, regardless of the number of missing employee verifications; and (c) for a third or subsequent violation, the employer must file the affidavit and pay a civil penalty of $2,000 for each required employee verification missing. In any event, failure to file the required affidavit for any violation also results in a civil penalty of $10,000.

South Carolina: SC Illegal Immigration Reform Act Update
On Monday, Governor Haley signed a bill into law amending several sections of the South Carolina Illegal Immigration Reform Act of 2008 (SCIIRA). The most important amendments mandate that all South Carolina employers that are required to complete and maintain federal employment eligibility verification forms or documents, use E-Verify. South Carolina employers have until January 1, 2012 to comply with the South Carolina law.

The current version of SCIIRA imputed a state employment license to South Carolina employers as of July 1, 2009, and has required compliance by all South Carolina employers since July 1, 2010. SCIIRA allows employers to choose between enrolling and verifying their work force through the federal E-Verify system or employ only workers who (a) have a South Carolina driver's license or ID card, (b) have a driver's license or ID card issued by another state whose license requirements are as strict as those in South Carolina, or (c) are eligible to obtain a South Carolina driver's license or ID card. Penalties for failure to comply with verification procedures include civil penalties of not less than $100 and not more than $1000 for each violation, and include the suspension or revocation of an employer's employment license for "knowingly or intentionally employing an unauthorized alien".

SCIIRA has been enforced by investigators with SCLLR who have been notifying and conducting audits of South Carolina employers since the Summer of 2009. Investigations ceased earlier this year in light of questions as to the enforceability of South Carolina's statute. With the passage of the new law, it is likely that investigations will continue under the parameters of the new law.
In addition to deleting the alternative means for compliance and mandating the use of E-Verify, the law removes civil monetary fines and implements a system of probation, suspension and revocation with respect to the imputed employment license. Private employers that are general contractors are also required to maintain contact phone numbers for all subcontractors working on the project. After a violation is determined, SCLLR will verify the work authorization status of the employees, notify the employer of the results and notify federal, state and local law enforcement officials of any suspected unauthorized aliens employed by the employer. Each failure to verify the immigration status of a new employee is considered a separate violation of the law.

Posted by The Whitford Group, 704 298-2115

ParkerPoe, EmployNews, Issue 626, July 1, 2011

New Wage and Hour “App” from the Department of Labor (DOL)

The Department of Labor (DOL) - which, by the way, estimates that 70 percent of employers are not in compliance with the Fair Labor Standards Act (FLSA) - has unveiled a free smartphone application that allows workers to track their hours so they can figure out exactly how much compensation they're owed for time worked.

Yes, there's an app for that!

Plus, the app includes a prominent "contact us" icon, making the DOL just a quick finger-tap away for any employee who believes he or she is being underpaid. Secretary of Labor Hilda Solis notes that the technology could prove "invaluable" during wage/hour investigations that allege inaccurate employer time records.

Do you need a wage and hour audit? Don't spend money paying penalties and fines. Use your money wisely, protect your company.

The Whitford Group
704 298-2115

BLR, July 2011

Fourth Circuit Again Finds Sexual Harassment Created by General Workplace Behavior

Until several years ago, in order to prevail on a claim of sexual harassment under Title VII, plaintiffs in the Fourth Circuit Court of Appeals' jurisdiction (including North and South Carolina) had to demonstrate that the alleged hostile environment consisted of acts directed at them because of their gender.

Recently, the Fourth Circuit changed this view, allowing sexual harassment claims to proceed to trial where the plaintiff was exposed to a culture of sexual and denigrating behavior towards women in the workplace, even if that conduct was not directed at her personally. Last month, the court further extended this principal, finding a hostile work environment based largely on sexist and demeaning attitudes and opinions toward women expressed by co-workers.

In Mosby-Grant v. City of Hagerstown, the plaintiff was a police academy cadet, who contended that her failure to graduate was caused by the behavior of her fellow recruits. She alleged a wide range of complaints, most of which involved explicit and derogatory references to women in general. Cadets and instructors used the word "bitch" to refer to women, and male recruits complained about domestic violence training. The plaintiff alleged that she was subjected to scorn and ridicule by her co-workers based on her gender.

In a 2-1 decision, the Fourth Circuit concluded that the plaintiff's allegations were sufficient to state a claim of hostile environment harassment under Title VII. The court concluded that the cumulative effect of comments demeaning to women is equivalent to an environment where women are subject to unwanted sexual advances.

ParkerPoe, EmployNews,Issue 602, January 14, 2011

NLRB Prohibits Pre-Emptive Strike Against Concerted Activity

The National Labor Relations Act protects the rights of employees to engage in concerted activity, such as collective discussion of wages or other terms and conditions of employment with their employers. Last month, the National Labor Relations Board extended the Act's coverage to preliminary activities by employees that do not yet constitute concerted activity.

In Parexel International, LLC, a terminated employee alleged that he was fired after preliminary discussions with other employees regarding wages and wage discrimination. The employer allegedly caught wind of these discussions before the employee raised them with the employer. The administrative law judge who heard the matter concluded that the employee had not yet engaged in any concerted activity with regard to these wage issues, and therefore could not contend that his termination violated the NLRA.

The Board reversed this decision, concluding that the underlying policies behind the Act mandate that employee discussions that could lead to concerted activity are also legally protected behavior. Employers cannot conduct pre-emptive strikes to prevent concerted activity at early stages before employees gain clear statutory protection against retaliation.

When combined with last week's Facebook settlement, this decision demonstrates the NLRB's shift to strong protections of employee rights to criticize employers and the terms and conditions of their employment, regardless of the forum used, and regardless of the stage in which this criticism arises.

Employers should exercise caution before disciplining or discharging any employee who could be considered to have raised questions regarding their employment conditions on behalf of themselves and other employees.

ParkerPoe, EmployNews, Issue 607, February 18, 2011

NLRB Settles Facebook Case

On Monday, the National Labor Relations Board announced settlement of a landmark case dealing with employees' ability to criticize and complain about their employers on Facebook and other social networking sites. The case involved an employee of a Connecticut ambulance service who complained about her supervisor on her Facebook page, and engaged in an on-line discussion with co-workers about the supervisor's behavior.

The employer fired the employee, claiming violation of the social networking policy contained in its employee handbook. The employee filed an administrative complaint with the NLRB, contending that the National Labor Relations Act protects her ability to criticize the employer and to engage in discussions with other employees regarding work issues.

The NLRB contended that these legal protections extend to employees' use of social networking sites, even where these sites can be accessed by the general public. The employer claimed that the employee's conduct in this case was not protected, because her postings were intended to hold the supervisor up to ridicule rather than engaging in a discussion over working conditions.

In the settlement, the employer agreed to revise its social networking policy to make clear that it does not prohibit legitimate discussion or criticism of terms and conditions of employment.

This settlement preserves the employer's right to take appropriate disciplinary action in the event that employees engage in taunting, ridicule, harassment, or conduct that goes beyond complaints about work, even if their conduct contains elements of such complaints.

The NLRB and federal courts are likely to struggle with the exact line between legitimate criticism of working conditions and inappropriate or insulting behavior.

Employers should review their social networking policies to make sure they cannot be construed to prohibit any discussion among employees of work or working conditions.

ParkerPoe, EmployNews, Issue 606, February 11, 2011

Supreme Court Allows Title VII Retaliation Suit by Fiancée of Employee Who Filed EEOC Charge

In recent years, the U.S. Supreme Court has broadly read anti-retaliation provisions of federal labor laws, rejecting technical challenges based on interpretations of such statutes.

On Monday, the Court unanimously continued this trend, allowing a Title VII retaliation suit by the fiancée of an employee who filed an EEOC Charge against their common employer.

In Thompson v. North American Stainless, LP, the plaintiff's fiancée filed an EEOC Charge alleging sex discrimination. Three weeks later, the company terminated the plaintiff. He filed his own EEOC Charge, alleging that he was terminated in an attempt by the employer to retaliate against his fiancée.

The employer contended that under Title VII's anti-retaliation provision, the plaintiff had no standing to sue because he had not engaged in any protected activity under Title VII.

The Supreme Court disagreed, reversing the contrary decision of the Sixth Circuit Court of Appeals, and remanding the matter for possible trial. In its decision, the Court noted Congress' intent to apply Title VII's anti-retaliation provisions to a wide range of employer conduct.

Clearly, the plaintiff's fiancée was entitled to file her own retaliation complaint based on the termination. The Supreme Court refused to draw a line as to whether termination or negative action against any co-worker with whom the complaining employee has a relationship would constitute retaliation under Title VII. Each case must be individually reviewed.

In terms of the fiancée's independent right to file a Charge, the Court concluded that any aggrieved employee who falls within a "zone of interests" protected under Title VII may file a retaliation complaint. A fiancée of a complaining party is closely related enough to provide independent protection under the statute.

This reasoning may not apply to any co-worker who is a friend of the complaining party. This decision will surely trigger additional litigation by tangentially related employees who claim that some relationship with a co-worker who complained about discrimination motivated the employer to retaliate against them.

Employers seeking to discipline or terminate employees known to have a personal connection to a complaining party should make certain they can demonstrate legitimate business reasons unrelated to the Charge before taking such action.

EmployNews, ParkerPoe, Issue 604, January 28, 2011

The Whitford Group
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704 298-2115

Interesting that I keep using the word "retaliation" when speaking with clients and the word keeps popping up in the news. As I have stated in the past, retaliation is extremely serious and all measures should be taken to prevent it. The above reference case is based on a U.S. Supreme Court decision, certainly not to be taken lightly.

Technical Notification Failure Dooms FMLA Defense

Employer's Failure Allows FMLA Claim To Go Forward

The Story: A newspaper receptionist, who was allegedly fired for violation of her employer's attendance policy, had a triable Family and Medical Leave Act (FMLA) claim because the employer did not effectively trigger the plaintiff's obligation to provide medical certification of her condition, a circuit court decided.

Reversing summary judgment for Gannett Satellite Information Network, owner of the Dickson Herald in Tennessee, the circuit court determined that Gannett could not rely on employee Deborah Branham's failure to provide medical certification as a justification for denying her FMLA leave and firing her.

Instead, the court found that Branham satisfied her statutory obligation to notify the employer about her need for medical leave, and that Gannett "never properly triggered her additional duty to provide a medical certification supporting her claim."

In the case, a physician, Dr. Pamela Singer, examined Branham on November 13, and the doctor wrote a "negative certification" indicating Branham's condition was "normal," and that she should be able to return work November 14. Nevertheless, Branham remained absent for most of the subsequent two weeks, due to migraine headaches, nausea, depression, and insomnia.

On November 24, Gannett fired Branham for violation of the company's attendance policy, as she was absent after the date the doctor released her to work. On that same day, however, Gannett received a faxed certification form from a nurse practitioner in Dr. Singer's practice group, stating that Branham's illness began on May 6, and was expected to last until January 1, 2007.

The lower court ruled for Gannett, holding that the employer was entitled to rely on the negative certification—which denied leave to Branham—and Gannett did not have to wait for the completion of FMLA's fifteen-day certification period when Branham never indicated she was seeking a second opinion.

However, the Sixth Circuit reversed. It noted that it didn't have to deal with the question of the negative medical certification and the 15-day waiting period because Gannett did not take the prescribed steps to trigger Branham's obligation to provide medical certification in the first place.

The court determined that "Branham has produced sufficient evidence to create a genuine issue of material fact about her entitlement to FMLA leave, and Gannett was not permitted to deny her leave based on the certification requirement when it never properly requested certification or informed her of the consequences of failing to provide the same, as required by regulations."

Even if the company representative had discussed all the appropriate information, an oral request would have been "insufficient to activate Branham's certification duty," the court said.

As my current clients know, I talk a lot about issuing FMLA paperwork when an employee has been absent from work for three consecutive days or more (day four) for the same or related illness. It’s a lot less expensive to send out the certification form, and it not be needed, than to face the issues in the above case. Although they do not state the actual damages and monetary award in this case, it reads to have been substantial.

Edited for use in this blog.


The Whitford Group
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704 298-2115

Prevent Employment Discrimination and Lawsuits

Employment Discrimination Lawsuits Are Escalating

In employment discrimination lawsuits, the business always loses. Consequently, creating a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form is critical for your success. Employers need to adopt several serious guidelines for the prevention of discrimination in the workplace. Don’t wait until you are the target of an employment discrimination lawsuit before you follow a few simple steps that could have prevented years of pain.

Employment Discrimination Law Suits Rising

Let’s start by looking at the scope of the problem in employment discrimination lawsuits. U.S. Equal Employment Opportunity Commission (EEOC) statistics reveal that the highest number of employment discrimination charges in its 45 year history were filed in the fiscal year ending on September 30, 2010. The EEOC’s statistics about employment discrimination continue to demonstrate a three year trend of increased charge filing and litigation. Driven by the dismal economy, a bigger EEOC enforcement budget, and employee-friendly revisions to EEO laws, the employment discrimination lawsuit trend is expected to continue.

Key findings in the employment discrimination statistics reveal that in 2010:

•Retaliation discrimination is the most frequently cited form of employment discrimination (36,258 charges). Historically, retaliation complaints filed with the EEOC increased 44%, from 22,690 charges in 2003 to 32,690 in 2008.

•Retaliation is followed closely by race discrimination (35,890 charges).

•Employment discrimination hit new records for sex, national origin, religion, and disability discrimination charges.

•Employment disability discrimination charges increased nearly 20%, due in part, to the 2008 Americans with Disabilities Act Amendments Act (ADAAA).

•The EEOC handled its first employment discrimination charges brought under the Genetic Information Nondiscrimination Act (GINA).

•The EEOC received almost 31,000 charges alleging unlawful harassment; 11,717 were sexual harassment charges. The majority of harassment charges alleged some form of harassment, other than sexual harassment, such as race, national origin, or religious harassment.

The EEOC also reported that it secured more than $404 million in monetary benefits for individuals - the highest level of relief obtained through administrative enforcement in the Commission's history.

Rising Costs of EEOC Suits Expensive for Employers

From an employer’s perspective, settlement costs to resolve an EEOC claim fade in the face of additional, often unrecorded, costs to the employer’s organization. Atkins says that these include the costs of:

•the distraction of an organization’s staff for months as documents are gathered and prepared, an internal investigation is conducted, and time is invested in fighting the claim,
•the loss of employee morale while under the constant pressure of a lawsuit,
•the potential loss of an employer’s reputation as an employer of choice for recruiting and retaining desirable employees, whether found guilty or innocent, and
•attorneys' fees which can cost as much or more than an eventual settlement, if the employer is found guilty.

In addition to these hard-to-quantify costs, Atkins says that the average single claimant lawsuit results in defense costs of $250,000 and a jury verdict of $200,000. Other sources place the average verdict awards even higher, at nearly $900,000 in 2007, with the average settlement nearly $550,000. In any case, jury awards are expensive for employers.

Class action lawsuits, which are also increasing, generally result in lower per claimant awards but can cost an employer millions of dollars in cash and untold millions in the above employee costs listed. Also note that it only takes three employees who have the same or similar charge to constitute a class action law suit. It’s not just the giants in business, it can be anyone.

While the potential costs of employment discrimination lawsuits are high, on the plus side, employers have some recourse. Employees who feel they are experiencing employment discrimination should first use the employer’s internal complaint system. This gives the employer the opportunity to investigate the alleged employment discrimination and provide recourse through their normal complaint resolution process.

Employees who do not believe that their complaint was adequately addressed by their employer, and in situations where the harassment or discrimination behavior continues, may file a claim with the EEOC.

What Employers Can Do to Prevent Employment Discrimination

Employers who put strong measures in place to prevent and address employment discrimination, harassment, and retaliation may avoid EEOC charges and lawsuits. Further, their employment discrimination policies, preventions, and practices can work in their favor in an employment discrimination lawsuit. If the employer can demonstrate the following preventative actions, the employer may escape significant damages.

Employers are advised to prevent employment discrimination and create a workplace culture that discourages employment discrimination, harassment, and retaliation, with these actions.

•Implement and integrate a strict policy that makes employment discrimination of any type unacceptable in your workplace. The policy needs to cover employment discrimination, harassment, and retaliation. The policy should include a process for reporting any incidents of employment discrimination, harassment or retaliation to the company. Preferably employees are given several methods for reporting incidents in case their supervisor is involved in the employment discrimination matter.

The employment discrimination policy should also communicate how an employee’s complaint will be handled with an outline of steps. The employment discrimination policy should spell out disciplinary action that will be taken with offenders. The employment discrimination policy should also discuss the nature of retaliation and stress that retaliation is also a form of discrimination. Finally, the employment discrimination policy should contain an appeal process for employees who are dissatisfied with the outcome of their complaint.

•Train your managers in the implementation of the anti-discrimination policy with the expectation that prevention is their responsibility. A manager’s role is to create a work environment and culture in which employment discrimination, harassment, and retaliation do not occur. Managers must recognize signs and symptoms that discrimination, harassment, or retaliation is occurring and know how to address these illegal actions. Managers must thoroughly understand the company’s policy and know how to recognize work situations that might escalate into employment discrimination, harassment or retaliation situations.


•Establish cultural expectations and norms. Creating a work environment that is free of employment discrimination, and all forms of harassment and retaliation should be integral in employee job descriptions, the goals in the performance development planning process, and in employee review and evaluation.

•Respond to an employee complaint about employment discrimination, harassment, or retaliation in a timely, professional, confidential, policy-adhering manner. Address the employee complaint through to appeal, when necessary.

As with any employment situation that could result in litigation, document all aspects of policy training, complaint investigation, hiring and promotion practices, management development, employee preventative training.

Your good faith efforts to prevent employment discrimination, harassment, and retaliation may serve you well – increasingly important in the litigious future.

By Susan M. Heathfield, About.com Guide
Edited for use in this blog.

The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115

Retaliation is Illegal

Retaliation Definition:
Retaliation is revenge or reprisal. Retaliation means to get even, or to take revenge. But, retaliation in employment and the world of Human Resources has a much more specific meaning and connotation. In connection with charges of discrimination, retaliation is a serious issue for employers.

For employers, note that all of the laws that the U.S. Equal Employment Opportunity Commission (EEOC) enforces make it illegal to fire, demote, harass, or otherwise retaliate against either job applicants or employees for these reasons. The employee or applicant:

•filed a charge of discrimination,
•complained to their employer or other covered entity about discrimination on the job, or
•participated in an employment discrimination proceeding, such as an investigation or a lawsuit.

The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, transfers or lateral moves, layoffs, training, benefits, and any other terms or conditions of employment.

An employee or applicant is protected by law from retaliation whether his or her charges are proven true or false. This is to preserve and protect their rights, and to encourage employees or applicants who experience discrimination or retaliation to come forward and report it.

Retaliation can be stealthy and difficult to witness and document. This makes the obligation of the employer to regularly follow up with any applicant or employee who might face retaliation as a result of the reasons stated above, critical. The employer would be smart to document the regular follow-up and any charges of retaliation that are reported or witnessed as a result.

Employers must investigate a charge of retaliation, and even a rumor of retaliation, and document the investigation, its findings, and any disciplinary action that resulted. Following the investigation, the employer still has the obligation to continue to follow up to ensure that retaliation is not occurring.

A charge of retaliation, in the eyes of the courts and regulatory agencies, is worse than the reason the charge or complaint was filed in the first place.

By Susan M. Heathfield, About.com Guide
Edited for use in this blog.

The Whitford Group
TheWhitfordGroup@aol.com
704 298-2115

NLRB Challenges Employers’ Social Networking Policies

NLRB Challenges Employers’ Social Networking Policies

The National Labor Relations Board (NLRB) has recently taken aim at employer policies that restrict employees’ use of social media. In a recent case that could have far-reaching implications, the board’s Hartford Regional Office charged American Medical Response of Connecticut Inc. (AMR) with violating the National Labor Relations Act (NLRA) by terminating an employee for posting negative comments about her supervisor on her Facebook page. The NLRB investigation found that the employer’s social media policy interfered with employees’ rights under the NLRA by prohibiting employees from making disparaging remarks when discussing the company or supervisors and by prohibiting employees from depicting the company in any way over the Internet without company permission.

The NLRB’s Complaint
The NLRB’s complaint alleges that AMR, an ambulance service, illegally terminated one of its employees because she posted negative remarks about her supervisor on her personal Facebook page using her home computer. On the day in question, the supervisor allegedly asked the employee to prepare an investigative report concerning a customer complaint about her work. When the employee asked for union representation, her request was denied. After the employee posted the negative comments on Facebook, her co-workers chimed in with their own comments related to her post, which led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated as a result of the postings, as they violated AMR’s Internet policies.

Like many companies, AMR has a social media policy that prohibits employees from disparaging the company and its supervisors in social media posts, even when posting while off duty and using a personal computer. Specifically, AMR’s policy states: “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”

The NLRB’s complaint asserts that AMR’s application of its social networking policy unlawfully interfered with the employee’s right under Section 7 of the NLRA to engage in “concerted, protected activity”—in other words, the right to communicate with co-workers about the terms and conditions of employment. Comments are protected under the NLRA only if they are related to a term or condition of work and are concerted in nature. Comments are “concerted” where they involve more than one employee, thus making the co-workers’ Facebook postings in the AMR case significant. Significantly, Section 7 applies to employees’ protected, concerted activity regardless of whether the workplace is actually unionized. Further, and perhaps most problematically, the NLRB’s complaint appears to allege that merely having in place an anti-disparagement social networking policy, like AMR’s, violates Section 7 even if the employer does not actually apply the policy to impose discipline.

Summarized for this blog.
January 3, 2011
Author: Patrick H. Hicks and Deborah L. Westbrook

The Whitford Group
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I-9 Audits on the Rise in Obama Administration

This www.shrm.org article content was sent to you by: Jan Whitford SPHR

I-9 Audits on the Rise in Obama Administration
By Allen Smith
1/11/2011

Immigration raids have decreased and the number of I-9 audits has risen dramatically in the first two years of the Obama administration, according to immigration attorneys.

“In the past two years, the Obama administration has significantly changed the direction of Immigration and Customs Enforcement’s worksite efforts,” Kevin Lashus, an attorney with Greenberg Traurig in Austin, Texas, told SHRM Online. “The Bush administration was interested in taking the highest numbers of unauthorized workers into custody during any time frame. The Obama administration, on the other hand, is interested in targeting the employers that hired them.”

Criminal Prosecutions
While Immigration and Customs Enforcement (ICE) in the Bush administration locked down buildings and herded workers into interrogations and ultimately onto planes for removal, the Obama ICE has increased administrative fines and paper audits—after which employers are asked to dismiss unauthorized workers, Lashus said. Criminal prosecutions of employers also have risen under the Obama administration, he added.

“Raids the way they used to be are not used by ICE anymore,” agreed Mira Mdivani, an attorney with The Mdivani Law Firm in Overland Park, Kan. “In the past, ICE raided workplaces, arrested workers en masse and placed them in deportation proceedings.” Since April 2009, ICE’s stated priority has been the criminal prosecution of employers, she remarked.

“These days, ICE investigates the employer without the employer’s knowledge for months before serving a notice of I-9 inspection on the unsuspecting employer,” Mdivani said. “So while the decorum is much nicer, the consequences for the employer may be much more serious, including criminal and civil liability.” The focus has changed, Mdivani concluded, to prosecuting employers, not workers.

Some raids may continue where undocumented workers are present, according to Hector Chichoni, an attorney with Duane Morris in Miami. But Secretary of the Department of Homeland Security Janet Napolitano “has pledged over and over to increase the focus on criminal punishment for employer violators.” He added that under the Obama administration, possibly in association with other federal agencies such as the Labor Department and Internal Revenue Service, ICE inspections will continue and possibly increase.

“Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers,” Chichoni said. “The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area.”

There are many more I-9 audits in the Obama administration, according to Bonnie Gibson, an attorney with Fragomen, Del Rey, Bernsen & Loewy in Phoenix. “There were so few audits in the Bush administration that I don’t have any basis for comparison,” she remarked. “There is a new crop of audit staff, and ICE investigators and fines and pending notices of intent to fine are up dramatically.”

Agency Cooperation
Another change has been the increased cooperation among ICE and other government enforcement agencies. Gibson said ICE recently established a joint agency task force to gather information from multiple government sources and to target joint enforcement efforts.

Fusion centers have been established to facilitate cooperation among agencies, added Mary Pivec, an attorney with Keller and Heckman in Washington, D.C. Wage and hour investigators, ICE auditors and tax auditors all are in one place at the fusion centers to share resources, leverage information and pursue top-to-bottom audits, she said. An employer in trouble tends to have violations that crisscross the workforce enforcement realm, so the government thinks it makes good sense to maximize its resources and have agents from different departments investigate together, Pivec said. What starts out as a wage and hour audit may become an ICE audit, as investigators have been cross-trained to recognize what might be violations of laws other than the ones they enforce, she commented.

Technical Violations
As for government audits of employers, Pivec said employers are being “nickeled and dimed with technical violations” of I-9s.
“In the past, an I-9 audit may have ended with a reprimand and a fine,” Mdivani added. “Now, it is ICE’s policy to use I-9 audits to lay the foundation for criminal prosecutions. When ICE is unable to do so, they still get their pounds of flesh.” She said that even in the case of a recent audit of Abercrombie & Fitch, where there wasn’t a single unauthorized worker, “ICE fined the employer $1 million for what essentially were paperwork I-9 violations. Under these circumstances, every employer is vulnerable.”

Allen Smith, J.D., is SHRM’s manager of workplace law content.
Related Articles:
Abercrombie & Fitch Fined More than $1 Million After I-9 Audit, SHRM Online Legal Issues, Oct. 4, 2010
Avoiding Immigration Audits, HR Magazine, January 2011

Edited for publication in this blog.

The Whitford Group
704 298-2115