Wednesday, August 27, 2008

ICE Continues Enforcement Trend With Largest Raid Ever

Federal immigration authorities conducted the largest single-workplace immigration raid in U.S. history on August 25, 2008.  In a small southern Mississippi town, federal agents rounded up nearly 600 plant workers suspected of being in the country illegally.

Immigration and Customs Enforcement (“ICE”) spokeswoman Barbara Gonzalez said federal agents arrested the workers in a raid at the Howard Industries Inc. factory in Laurel, Miss, on Monday. “This is the largest targeted workplace enforcement operation we have carried out in the United States to date,” said Gonzales, as quoted in a Reuters article .

Reuters reported that the swoop at the plant, which makes electrical equipment including transformers, was part of an ongoing crackdown on identity theft and fraudulent use of Social Security numbers by illegal immigrants.

The news account notes that the raid comes amid a toughening stance toward illegal immigrants in the United States, where some 12 million live and work in the shadows. Since October 1 last year, more than 4,000 people have been nabbed in stepped-up enforcement raids across the country.

It remains to be seen whether company executives will be prosecuted.

The Associated press reports here that Gonzalez said agents had executed search warrants at both the plant and the company headquarters in nearby Ellisville. She said no company executives had been detained, but this is an “ongoing investigation and yesterday’s action was just the first part.”

The AP report notes that in a statement to the Laurel Leader-Call newspaper, Howard Industries said the company “runs every check allowed to ascertain the immigration status of all applicants for its jobs.” “It is company policy that it hires only U.S. citizens and legal immigrants,” the statement said.

As noted here, criminal and civil fines against employers has increased markedly since 2007.

Earlier this year, ICE issued worksite enforcement advisory titled “Know Your Workforce: The Key to Immigration Compliance.” The advisory notes: “A recurrent issue encountered in ICE worksite enforcement investigations today is the abuse of the Social Security card by individuals seeking to satisfy the work authorization requirements mandated by federal law. The Social Security card has long been a favorite of fraudulent document vendors. In fact, immigration fraud investigators have coined the term ‘three pack’ to refer to the frequently encountered fraudulent document combination of the Social Security card, the state driver’s license or identity card, and a work authorization document.”

The publication provides some compliance “so that employers do not inadvertently facilitate acts of identity theft within their own workforce.”

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Sunday, August 17, 2008

Sick Pay To Remain A Benefit, Not Entitlement—-For Now

Is sick pay an employee entitlement or a benefit? In California, a bill seeking to make sick pay an entitlement that all employers must provide has died in the Senate. But it will be back.

For details on the provisions of AB 2716, see our May 2008 summary here.

The bill died in the Senate because of budget constraints, noted Dean Calbreath, a San Diego Union Tribune columnist in a recent article. “The Schwarzenegger administration opposed the bill on the grounds that it would add costs to the state budget. The Department of Finance estimated that paying for the sick leave would add $600,000 to the budget, because the state would have to pay for sick leave for nurses who provide health care to elderly, blind and disabled patients in their homes.”

The cost to private employers would be much more. Although many employers offer sick pay as a benefit, most employers bristle at the thought of a state mandate requiring such pay. In a letter to the California Senate Appropriations Committee, the Cal Chamber of commerce wrote: “The ever-increasing burden of costly mandates on employers can cumulatively result in lower wages, reducing available health insurance, limiting training programs and - in the worst case scenario- job loss or reduced work hours. Job loss translates to lower tax revenues from employers and employees, as well as increased utilization of Unemployment Insurance. In an already troubled economy California should be seeking ways to stimulate job growth and avoid forcing costly mandates on employers.”

Supporters of the bill came up with all manner of public policy arguments. The pro-labor group Labor Project for Working Families argued in a fact sheet that employers should support the sick pay mandate because it would decrease employee turnover, increase productivity, and improve public health. 

The public health argument appeared to strike a chord with voters. The argument is that sick workers make more people sick. Korye Capozza,  of the UC Berkeley Center for Labor Research and Education hypothesized in a policy brief that mandatory sick pay would improve decrease food poisoning and save the elderly. “AB 2716 would have clear benefits for individual workers but, importantly, it would also have public health benefits that extend beyond the household and workplace” wrote Capozza. “Specifically, such a policy could reduce the transmission of foodborne illness, decrease disease outbreaks in nursing homes, reduce the spread of infections in childcare settings and mitigate the transmission of seasonal influenza. There is also some evidence that paid sick leave influences workers’ decisions to see a doctor, parents’ decisions to stay home and care for a sick child and patients’ decisions about treatment choices. Finally, AB 2716 has the potential to improve patient compliance with preventive health-care guidelines and chronic care management, and thus to reduce health-care spending over the long term.”

Mandatory sick pay will be back. Assemblywoman Ma has vowed to reintroduce the bill next year. It is likely to gain public support. The California Center for Research on Women and Families, a program of the nonprofit Public Health Institute, publicized a public poll finding 73% of voters would support a law to guarantee that workers receive a minimum number of paid sick days from their employer.

Similarly, the poll found that 81% agree (57% strongly) that guaranteeing paid sick day laws to all restaurant workers who handle food would increase the chances that these workers would stay home when they get sick and not infect the public. Another 76% agree (50% strongly) that paid sick days should be considered a basic worker right, like being paid a decent wage.

The text to the most recent version of the bill can be found here.

Submitted By:
Christopher W. Olmsted
Barker Olmsted & Barnier APLC

Thursday, August 14, 2008

Cal Supreme Court Lets Stand Key Disability Ruling

The California Supreme Court denied a petition for review in a case titled Arteage v. Brink’s Incorporated, letting stand an appellate court ruling that circumscribed the definition of “disability” under California law.

Defining the term “disability” under California law is a very important issue, and California employers ought to pay careful attention to the definition. Unlike the federal ADA, California’s FEHA has a very broad definition of disability. Until the Arteaga appellate opinion, now left untouched by the California Supreme Court, courts have not focused much on whether particular physical conditions do or do not qualify as disabilities.

FEHA is explicitly and unabashedly liberal—it says so right in the text of the statute. As stated in the FEHA: “The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.” “The provisions of [the FEHA] shall be construed liberally for the accomplishment of [its] purposes . . . .”

FEHA fulfills its liberal aspirations in the definition of “disability.” Under the FEHA, “physical disability” includes having a physiological disease, disorder, or condition that, by affecting the neurological or musculoskeletal body systems, special sense organs or skin, “limits” a “major life activity.” The key word is “limits.” It is very broad, and is contrasted with the federal ADA, which requires a “substantial” limitation. “Limits” is synonymous with making the achievement of a major life activity “difficult.”

Management attorneys and HR experts have long lamented this broad definition. They are heard to complain that just about any condition can make life difficult. They say that it is too easy to allege disability discrimination.

The appellate court in this case tackled the definition head on. The court began by considering what the “baseline” for “difficult” should be. “In deciding whether [the employees’] limitations . . . make them ‘disabled’ under FEHA, the proper comparative baseline is either the individual without the impairment in question or the average unimpaired person.”

For example, one could look at an employee with a 25 percent reduction of former capacity to lift, or an employee who lost approximately 50% of her pre-injury capacity for manual tasks. Additionally, one could look to the normal or average population. For example, in considering whether a disability caused difficulty with tasks such as dressing and sleeping, one can look to whether most people can perform those tasks without difficulty.

Turning to Arteaga, the appellate court examined his claim of pain symptoms. Arteaga did not have an actual disability while employed by Brink’s because his symptoms did not make the performance of his job duties difficult as compared to his unimpaired state or to a normal or average baseline.

By denying the petition for review, the California Supreme Court has given implicit approval of the appellate court’s disability definition. It is also notable that the Court denied a motion to “depublish” the lower court’s opinion. If the opinion had been depublished, it could not be cited as a precedent in future cases. The Supreme Court’s decision to preserve the precedential authority of the lower court opinion adds weight to the assumption that the Supreme Court approves of the opinion. 

For a more complete analysis of the appellate court decision, click here.

Submitted by
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Friday, August 08, 2008

Well, Duh

From the New York Times: Study Finds Settling Is Better Than Going to Trial
Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal.

Week In Review (August 8, 2008)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=14419”>Department of Labor Issues Proposed FMLA Regulations.</A>
On January 28, 2008, the Family Medical Leave Act (FMLA) was amended by the National Defense Authorization Act for Fiscal Year 2008 to provide up to 26 weeks of job protected family leave to care for injured members of the Armed Forces, and up to 12 weeks of leave because of a qualifying exigency arising out of an employee’s parent, child, or spouse’s active duty or call to active duty. Under the amendment, a maximum of 26 weeks of leave may be taken during a 12-month period for any combina tion of the FMLA-qualifying events. Then, on February 11, 2008, the Department of Labor (DOL) issued much-anticipated proposed regulations for implementing the FMLA. These rules, which seek to clarify existing regulations, were open for public comment for a 60-day period, but the comment period closed on April 11, 2008. Although the DOL has not summarized or published the comments to date, it plans to complete the review process and adopt the new regulations prior to January 2009, when President Bush leaves office. Additionally, although this release does not include specific proposals for implementing the new leave provisions for family members of military personnel, the DOL did seek public comments on such rules.
Located On: Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Most Popular State Law Article

<a >Legal Changes for Employers (pdf)</A>
Laws and sausages have something in common.
Located On: Jones Walker

Most Popular Headlines

<a TARGET=“_blank”]Interview Questions: Legal or Illegal?[/url]
Workforce Management - August 04, 2008