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Employment Law Blog

Category: Employment Law

Tuesday, January 26, 2010

Federal Security Clearances:  Fighting to Get & Keep One

FEDERAL SECURITY CLEARANCES:  FIGHTING TO GET & KEEP ONE*

By John P. Mahoney, Esq., Partner, TULLY RINCKEY, PLLC, Washington, DC† (http://fedattorney.com)

The Federal Government is pretty good at keeping secrets.  When it comes to national security, the Feds do their best to ensure that only trustworthy people have access to classified government information and operations.  In order for federal employees and federal contractor company employees to have access to national security secrets, their personal backgrounds must be thoroughly investigated and they must be granted security clearances.  Since September 11, 2001, most workers on federal government facilities are required to qualify for and possess a security clearance as a condition of their continued employment.  For such employees, the loss or suspension of their security clearance means the loss of their jobs.  There are due process rights that apply when a federal agency proposes to suspend, revoke, or deny an employee’s security clearance.  However, unlike most federal employment due process procedures, there is no right to court review of an adverse federal agency’s security clearance decision, as the privilege to possess a federal security clearance is solely within the discretion of the Executive Branch of the Government of the United States.  Given that, an employee fighting to get or hold on to a security clearance must convince the Executive Branch that he or she qualifies for that employment privilege. 
   
Federal employees and contractors are often hired for their secured jobs before all their background checks have been completed.  On occasion, the government may ultimately determine that a provisionally hired employee or contractor is not suitable to possess a security clearance.  If the employee is unsuccessful in convincing the government to change its initial determination, he or she will be terminated.  People who are ultimately terminated by the federal government based upon a denial or revocation of a security clearance will often find it very difficult to secure another job, either in the federal or private sectors, as getting fired by the federal government based upon national security concerns does not make one very employable thereafter.

For most federal employees, the process of deciding to revoke a security clearance is governed by Executive Order 12968, which was signed by President Clinton on August 2, 1995.  Under that Executive Order, a federal employee has the right to a “personal appearance” before a federal administrative judge, which is akin to an oral reply in a federal disciplinary case.  Federal contractors actually have more due process rights than do federal employees, as contractors have the right to a full contested evidentiary hearing before a judge.  In the case of a federal employee, the judge’s decision is merely recommended, as the employing agency has the final decision as to who receives a security clearance from that particular agency.  For a contractor, the judge’s decision is final, although it can be appealed to the Department of Defense’s Office of Hearings and Appeals. 

When an agency initially determines that an employee does not meet the standards for access to confidential information, that employee shall be:

1. Provided as comprehensive and detailed a written explanation of the reasons for the denial of the clearance as national security interests and applicable law permit, usually called the “Intent to Revoke Access Eligibility” or the “Statement of Reasons”;
2. Provided documents, records and reports upon which the clearance denial is based, to the extent such documents would be provided under the Freedom of Information Act and the Privacy Act, within 30 days;
3. Informed of their right to counsel or other representative, to request documents, and to request the entire investigatory file,  If requested, these materials shall be promptly provided prior to the time set for the written reply;
4. Provided a reasonable opportunity to reply in writing to the determination, and to request a review of that determination;
5. Provided written notice of and reasons for the results of the review, the identity of the deciding official, and written notice of the right to appeal;
6. Provided an opportunity to appeal in writing to a high-level panel appointed by the agency head.  The panel shall be compromised of three members, two of whom shall be selected from outside the security field.  Panel decisions are to be in writing and are final; and
7. Provided an opportunity to appear personally and to present relevant documents, materials, and information at some point in the process before an adjudication or other authority, other than the investigative authority, as determined by the agency head in an ex parte nonadversarial hearing.  A written summary or record of such appearance shall be made part of the employee’s security record, unless the appearance occurs in the presence of the panel.
 
The purpose of the security clearance review process is to give the employee or contractor the opportunity to convince the federal government that, when considered as a “whole person,” any security concerns that the agency had against the employee are sufficiently mitigated by corrective action taken by the employee in a timely fashion so as to convince the government that it is clearly in the national security interests of the United States that the employee’s clearance be granted or restored.  Given the complexities and stakes of a federal security clearance decision, it is advisable that someone facing the denial or revocation of their security clearance seek representation by a qualified attorney who specializes in security clearance representation.


* Copyright© 2010 TULLY RINCKEY, PLLC.  All rights reserved.

† John P. Mahoney, Esq. is a Partner in the Washington, DC Federal Employment Law Firm of TULLY RINCKEY, PLLC.  (http://www.fedattorney.com).  Mr. Mahoney specializes in representing federal government agencies and officials, as well as federal contractors, in all facets of federal employment law, including security clearance litigation.

Posted by Patrick Della Valle on 01/26 at 04:27 PM
Employment Law
Monday, January 25, 2010

WORKPLACE VIOLENCE: EMPLOYERS NEED TO BE BETTER PREPARED

As an employment attorney and President of an HR Consulting Firm who makes my living conducting employment law training, I am hard-pressed to understand why employers are not better prepared for workplace violence.  I guess that one reason is that it takes years of litigation for employers to “get it”.  Similar to sexual harassment that first appeared in the 1970’s which took almost 35 years for most employers “to get” and to come to understand that they had to conduct training to avoid liability under the employment discrimination laws, I assume that the same is true of workplace violence.  Perhaps we are just in its infancy when many employers are not yet aware that it could happen in their workplace and also do not really know how to prepare.  Or perhaps it is due to the fact that many employers just really do not understand the consequences of having an instance of workplace violence occur in their workplace.

What are some of the consequences of workplace violence in a workplace?  Of course there is the immediate consequence of the horrific loss of life and unnecessary violence they and their employees have to endure.  In addition, there is the PR nightmare of being known as a company that failed to prepare for workplace violence and the appearance of your company on the evening news with police crime scene tape all around your workplace.  But perhaps employers don’t understand the deeper implications that failing to prepare for workplace violence can have on them.

What deeper implications you ask.  Well, first of all there is the possible liability under OSHA since all employers have an obligation under the general duties clause to provide a safe workplace for their employees.  Specifically, under OSHA employers must provide a place of employment “free from recognizable hazards that are causing or likely to cause death or serious harm to employees”.
But in addition, there is what is perhaps even more startling for employers, the fact that they can be held liable for the injuries caused by these instances of workplace violence under many creative theories of liability that plaintiff’s attorneys utilize.

First there are the negligent hiring theories of liability.  What does this mean? This means for example that a good plaintiff’s attorney would argue that had your human resources department done their part to check this employee’s background prior to hiring the employee, you would have known that he had been fired from his prior job for an instance of violence or that he had prior criminal convictions.  By failing to check his background, you were negligent in the hiring process and brought this dangerous employee onto your premises where there was a likelihood that he would be violent again.  What kind of damages are we talking about in these cases?  Damages that can be in the millions.  One reason this is such a worthwhile claim for plaintiffs to allege is because they can be awarded punitive damages in addition to compensatory damages.  This makes it very appealing as a claim for many plaintiff’s attorneys.

Then there are the negligent retention theories.  This is where the plaintiff alleges that you the employer were aware of the disgruntled worker’s tendency for violence and for jumping off the deep end and yet you failed to discipline him when he worked for you and failed to terminate him.  Thus, the theory goes that by retaining him without warning him to not continue to engage in discipline and by not getting rid of him, you subjected your employees to a person prone to violence and were thus negligent.

Either theory can lead to liability for employers.  For instance, in Yunker v. Honeywell, Inc., (496 N.W.2d 419 (Minn. Ct. App. 1993)) an employee at Honeywell had been previously fired for strangling an employee. The employee served five years in prison and then when he got out he applied to work for Honeywell again.  Honeywell hired him.  The HR professional who hired the employee hired him knowing he had been terminated for this prior incident of workplace violence.  Once the employee was rehired he engaged in numerous instances of harassing and threatening behavior toward co-workers and also became interested in a female co-worker.  After she rejected his romantic advances toward her, he shot and killed the co-worker in her driveway outside of her house.  The family of the victim sued Honeywell claiming both negligent hiring and negligent retention.  The court rejected the negligent hiring claim because he was rehired as a janitor whose job had very little interaction with other employees.  However, the court upheld the negligent retention claim on the theory that Honeywell had notice of the possibility of violence since the employee had harassed this woman at work and had painted a death threat on her locker door.  She had complained to the company and they had done nothing.  By failing to take action while continuing to retain him as an employee, the Court held that Honeywell had negligently retained the employee and they were held liable.

In another negligent hiring case, B&L Motor Freight was held liable for 4 million dollars for negligently hiring an employee who had prior criminal convictions even though he had stated he had none on his employment application.  This employee had raped another employee.  The court held that the employer should have checked his background for criminal convictions since he had access to interactions with others.  Similarly, in a Goodwill Industries case, the employer was held liable for 5 million dollars when a 15-year old employee was raped and murdered by an employee with a criminal background.  The employer had failed to do a background check on this employee.

What is the lesson for employers?  In my mind it is simple, training.  Training your managers and HR professionals to understand everything they need to know to prevent workplace violence.  Your managers and employees need to be trained on the importance of conducting background checks as well as on how to recognize the warning signs of workplace violence.  They also need to be trained on the importance of taking appropriate disciplinary action against employees for violent behavior they exhibit in the workplace.

Instances of workplace violence clearly are occurring more and more frequently.  Since the beginning of 2010 there have already been two serious incidents of workplace violence.  First there was the recent instance of workplace violence in St. Louis, Missouri on January 7, 2010 that left 4 dead including the shooter, Timothy Hendron.  Apparently Mr. Hendron was a disgruntled assembly-line employee upset about the high cost of his retirement benefits.  He worked at ABB Group, a transformer manufacturing plant in St. Louis.  He was so upset that he apparently had instituted a lawsuit against his company.  Seeking to take matters into his own hands, on January 10, 2010 he walked into the plant carrying an assault rifle and handgun and started shooting.  His actions left 4 dead including himself.  Witnesses described the scene as utter chaos.

Then there was the instance in which a former employee on January 12, 2010 returned to his former workplace, a truck rental company, and opened fire, killing 3.  Five others were also injured in this second instance of workplace violence in 2010.  Although we can never be ready for such instances of violence, I still find myself wondering if such incidents could not have been prevented by simple training and preparation that these employers might have done that could have saved these lives.  Were there missed warning signs by those who managed and worked with these employees?

Missed warning signs has emerged as a major factor in the violence that occurred at the Fort Hood shooting massacre in November 2009.  The Pentagon Report which was recently released indicated that there were numerous warning signs that supervisors did not see or failed to report.  Warning signs that if paid attention to could have possibly prevented the horrific instance of violence that took place in November at Fort Hood.  Warning signs that properly trained managers might have noticed and acted on.  In fact, the Army Report recommended severe reprimands for Hasan’s managers who should have noticed these warning signs and yet failed to act.

What lesson does all of this provide for employers?  I think the message is simple and clear.  Employers that wish to be proactive and protect and prevent workplace violence in their workplaces need to recognize that this is a case where an ounce of prevention can be worth a pound of cure.  What type of prevention?  First and foremost, employers should have a well-drafted workplace violence policy.  Next, they need to provide training as discussed above both on their workplace violence policy as well as on workplace violence in general.  Such training can be essential when it comes to having a viable defense to a case seeking to hold the employer liable for the workplace violence.  It shows that the employer recognized that there could be a problem and took affirmative steps to prevent such a problem.  Employers should also ensure that they thoroughly check references for all candidates including prior criminal convictions, driving records and any other relevant information.  They also need to ensure that they act promptly and impose discipline, up to and including termination if necessary, when an employee has evidenced violent tendencies on the job so that they can avoid any claims of negligent retention.

Clearly, this is where employers need to focus their training efforts in the coming months.  Training your workforce on how to recognize the warning signs of workplace violence and on how to prepare for instances of violence can help you prevent and be better prepared if violence should arise in your workplace.

Submitted by: Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
http://www.hrlearningcenter.com
.(JavaScript must be enabled to view this email address)

Posted by Patrick Della Valle on 01/25 at 01:16 PM
Employment Law
Tuesday, January 19, 2010

Department of Labor Publishes COBRA Subsidy Extension Model Notices

The government has published updated model forms for the recently extended COBRA subsidy.

Congress passed legislation on December 19th extending the COBRA subsidy eligibility period and coverage period. The extension came as part of the Fiscal Year 2010 Defense Appropriations Act.

The 2010 DOD Act extends the COBRA premium reduction eligibility period for two months until February 28, 2010. This means that employees who are terminated on or before February 28, 2010 may be eligible for the subsidy.

Additionally, the legislation increases the maximum period for receiving the subsidy for an additional six months (from nine to 15 months).

The legislation also helps those who already exhausted their subsidy period under the original legislation. Individuals who had reached the end of the reduced premium period before the legislation extended it to 15 months will have additional time to pay the reduced premiums related to the extension. To continue their coverage they must pay the 35% of premium costs by 60 days after date of enactment or, if later, 30 days after notice of the extension is provided by their plan administrator.

Individuals who lost their subsidy and paid the full 100 percent premium in December 2009 should be told to contact their plan administrator or employer sponsoring the plan to discuss a credit for future months of coverage or a reimbursement of the overpayment.

In addition to the notice requirements already mandated under ARRA, the 2010 DOD Act requires employers to provide notice of the new rights.

The employer or its group health plan administrator must give notice to any individual who was already eligible for the subsidy as of October 31, 2009. The notice must be given within 60 days of enactment (i.e. by February 21, 2010). The notice must also be given within 30 days to any individual who becomes eligible for the subsidy (i.e. terminated) on or after October 31, 2009. The new notice must provide information regarding the 2010 DOD Act amendments.

The Act also requires notice to individuals who either dropped COBRA or paid the full premium for it when their nine-month subsidy ended. The notice explains that they have two options: to either reinstate their coverage retroactively at the 35% subsidized rate, or to receive a credit or refund.

The DOL has published the updated model forms on its website, which can be found at this link.

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

Posted by Christopher W. Olmsted on 01/19 at 11:21 PM
Employment Law
Thursday, December 24, 2009

DOL Publishes A Safe and Sober Message About Workplace Parties and Drinking

The U.S. Department of Labor has published a message regarding safe and sober workplace parties.

The workplace is frequently a place where employees and employers get together to celebrate special events. Workplace parties typically mean lots of music, food and drinks. If the drinks include alcohol the potential for unfortunate consequences greatly increases. Opinions vary regarding the appropriateness of making alcoholic beverages available at workplace parties or other company-sponsored events. Ignoring the possibility that some employees or guests may drive home “under the influence” invites trouble.

Improper use of alcohol may expose employers to liability under tort, workers’ compensation or other laws. For example, an employer may be held liable if a person consumes alcoholic beverages at a company-sponsored party and subsequently causes a crash. Some employers have been held liable because negligent acts by employees under the influence of alcohol consumed at employer-sponsored events were found to be within the scope of their employment. In other cases, individuals have been held liable merely because they provided alcohol to social guests.

Each time an employee is involved in an impaired driving crash, businesses pay in the form of increased absenteeism and use of health-care benefits. According to the National Highway Traffic Safety Administration’s (NHTSA), the annual employer cost of motor vehicle crashes in which at least one driver was alcohol-impaired is more than $9 billion, including wage-risk premiums. Furthermore, if the employee caused the crash or is arrested for impaired driving even if a crash did not occur, administrative and legal procedures such as court time and traffic school may require further time away from work. And certainly no employer can deny the emotional difficulty and decreased morale employees experience when a colleague suffers from a severe injury or dies-two unfortunate, but not uncommon, outcomes of mixing alcohol and driving.

Depending on the nature of their business, some employers may have additional incentives to ensure their employees are educated about the potential legal vulnerabilities associated with impaired driving. Employers whose businesses serve or sell alcohol may be held liable if an individual consumes alcohol at their establishment and subsequently causes a crash. Employers with employees who drive as part of their job-such as couriers, delivery persons and sales representatives-may also be subject to legal action if the impaired employee causes a crash while conducting business. These employers must consider the costs of insuring and maintaining company vehicles, in addition to the time managers spend taking care of these procedures. The return on investment for employer-sponsored impaired driving prevention is considerable when compared to the financial burden caused by just one crash, especially for small businesses.

All employers run a risk if they serve alcoholic beverages at workplace celebrations and other company-sponsored events because they may be held liable if a person causes a crash subsequent to consuming alcoholic beverages at such an event. However, if an employer does decide to provide or allow alcoholic beverages at an office event, state laws regarding their use and resulting employer legal responsibilities should be consulted and addressed. Also, there are several measures employers can take in attempt to minimize any negative consequences of alcohol consumption.

The good news is that employers have enormous power to protect their businesses from the negative impact of impaired driving by educating employees about its harmful effects and supporting efforts to prevent it in their communities. By doing so, employers do more than just safeguard their business assets-they contribute to the nationwide campaign to eliminate a devastating and preventable crime and play a part in making their communities safer for their friends and families and those of their employees.

The DOL’s publication can be found at this link.

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

Posted by Christopher W. Olmsted on 12/24 at 06:33 PM
Employment Law
Wednesday, December 09, 2009

To salt or not to salt

I am in house counsel to a cell phone company with 300 employees in 8 states.  Our corporate office is in Oklahoma.  Recently the sky opened up and freezing rain soon coated our lovely red dirt and open plains with a lethal layer of ice.  I commute about 100 miles between the corporate office and my home and was lucky enough to be caught on the road when the ice began to fall.  I was frantically avoiding jack-knifing semi’s when my cell phone rang.

The question of the day: should we put salt down on the doorsteps and front walks of our 45 stores in Oklahoma?  Common sense dictated that this would be a good idea.  But, then my little employment lawyer brain began to churn.  What if one of our employees slips and falls while putting down the salt?  Several of my store managers argued that it was worse to put down salt, because it gave customers a false sense of security.  I grappled with the pros and cons of salting.  At about that time, I pulled into Target to buy provisions to endure the storm.  I scrambled out of my vehicle, and as I stepped onto Target’s front walk, the elderly woman in front of me slipped on the ice and bashed the back of her head on the ground.  After calling for help, I made one more call- back to the corporate office - instructing them to have each store put down salt, and lots of it!  Of course, I also dictated a brief email communication asking for employees to use extreme care when putting out salt, to wear appropriate footwear and to contact their manager if they did not feel comfortable participating in this activity.  This is one of those times that common sense was the order of the day.  (I’ll keep you posted on the worker’s compensation claims.)

Posted by Patrick Della Valle on 12/09 at 05:04 PM
Employment Law
Saturday, November 14, 2009

Missed Warning Signs of Workplace Violence in Fort Hood and Orlando Shootings

In the wake of the November 5, 2009 Fort Hood tragedy that left 13 dead and 42 wounded, employers can learn an important lesson about not ignoring the warning signs of workplace violence.  Apparently military psychiatrist Major Nidal Hasan had shown warning signs for years even since his residency in medical school.  However, no one picked up on these or recognized them.  Understanding how to recognize the warning signs of workplace violence is an important step that employers can take to avoid workplace violence.

What types of warning signs are there?

In this case, apparently there were many.  For instance, the fact that Hasan had many communications with a suspected terrorist advisor, Anwar al-Awlaki, a former imam at the Dar Al-Hijrah Islamic Center in Falls Church, Virginia.  Anway al-Awlaki was allegedly a “spiritual advisor” to some of the terrorists and hijackers involved in the 9/11 terrorist attacks.  Apparently, the military looked into these communications but then decided they were not important since violence or terrorist plots were not mentioned.  In addition,  a former classmate of Hasan’s who attended school with him in Maryland for two years described him as a “ticking time bomb” and stated that when he was a student in Maryland he gave a presentation justifying sucicide bombings.  Hasan also reportedly told this classmate that he is a Muslim first and then an American. 

In addition, there were many warning signs in the months immediately leading up to the shooting spree that were ignored by all.  Apparently, at the Mosque that he attended he made many comments to Congregants at the Mosque stating that Muslims should not have to be in the military and go over seas to fight against other Muslims in the War on Terror. He had also complained to many about his upcoming deployment because he did not feel comfortable going overseas to fight other Muslims. 

All of these signs were unfortunately missed by the Military.  Had they taken the time to notice them and perhaps connected the dots, they might have seen that Hasan was on the verge of engaging in this violent massacre. 

The next day in Orlando, Florida another workplace shooting took place.  This one by Jason Rodriguez who also had many of the warning signs.  Mr. Rodriguez had been fired from his engineering firm, Reynolds Smith & Hills more than two years ago. He obviously was quite upset about his termination and told a reporter who asked him why he had done this that it was “because they left me to rot”.  Apparently, he had never forgotten the anger nor moved on from the resentment caused by his termination.  In addition, his marriage had ended, he could not pay the child support for his son, his home was taken in foreclosure and he had to declare bankruptcy.  Faced with all of these stresses, Mr. Rodriguez was driven over the edge and on November 6, 2006 walked into his former office and began shooting, killing one and wounding five other employees.  His neighbors and mother had noticed that he had in recent weeks become dishelved but again no one had done anything about some of the warning signs he showed.  In fact, in many of the workplace violence cases, investigators have always reported that there were telltale signs prior to the violence that should have been noticed by others.  The gunman at Virgina Tech was a loner who rarely spoke to others.  This is a clear warning sign of a person that might be prone to engage in such violence.  He also had been found to be a danger to himself and others by a public agency but no one did anything about this. 

What are some of the warning signs that employers should watch out for?

Employees who display any or some of the following warning signs may be more likely to engage in some sort of violence at work. 

• Confrontational Attitude
• Talking about an attack
• Paranoid thoughts
• Threatening Co-Workers
• Threatening Bosses
• Showing guns or bragging about guns to Co-workers
• Harassment of Other Employees
• Showing Signs of Substance Abuse
• Aggressive Behavior
• Unusual Behavior
• Being a Loner
• Excessive Cursing
• Bullying Others
• Outbursts of Anger
• Frequent Absenteeism
• Sudden Withdrawal

Warning signs are important for employers to not ignore because they signal that the employee may be on the verge of “losing it” and if the employer were to step in and help they might be able to avoid an instance of violence in their workplace.  Employers should have Workplace Violence Prevention Policies and provide training to their employees on workplace violence prevention.  These training seminars can help train employees to be aware of the warning signs of workplace violence and will help educate employees on ways to make the workplace safer.  The efforts that employers put in to avoiding workplace violence can go a long way to protecting their employees and workplaces from unnecessary violence. 

For more information, or to schedule a workplace violence prevention seminar for your workplace, please contact us at .(JavaScript must be enabled to view this email address) or visit our website.  You may also visit our workplace violence prevention page.

Submitted by:
Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
http://www.hrlearningcenter.com
.(JavaScript must be enabled to view this email address)

Posted by Patrick Della Valle on 11/14 at 03:16 PM
Employment Law
Wednesday, November 04, 2009

Department of Homeland Security Rescinds No Match Rules

After much controversy and litigation, the Department of Homeland Security threw in the towel and rescinded its proposed No Match rules.

For years, the Social Security Administration (“SSA”) has been sending “No-Match Letters” to employers who employed individuals whose social security numbers (“SSN”) did not match their personal information. The SSA, however, provided unclear guidance for responding to the letters. Seeking to fill the void, DHS the agency responsible for enforcement of our immigration laws,  issued a new rule describing the steps an employer must take when it receives a “no match” letter from DHS or the Social Security Administration (SSA).

In October 2007, the AFL-CIO labor union obtained a court injunction prohibiting enforcement of the new rule. The DHS subsequently issued amended regulations, seeking to address some of the flaws raised by the union. But the effort lost steam, particularly after the new administration took over.

“After further review,” wrote the agency in its rescission notice, “DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.” The rescission becomes effective November 6, 2009.

DHS notes that employers should still react when receiving a no match letter. An employer who receives such a letter may be seen to be on notice that the worker could be illegal. “Receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of ‘‘constructive knowledge.’’ A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their own records for errors, inform the employee of the no-match letter, and ask the employee to review the information.”

“Employers would be prudent also to allow employees a reasonable period of time to resolve the no-match with SSA.” Thus, the government has put employers between a rock and a hard place, shrugged its bureaucratic shoulders, and said “Too bad for you.”
Employers who receive No Match letters should take action to protect themselves from possible immigration enforcement actions.

First, upon receipt of a No Match letter, the company should research its own records to check for typographical errors.
If no errors are found, the employer should notify the employee that the SSN is incorrect. Ideally the notice should be in writing.

The company should advise the employee to resolve the issue with the SSA within a reasonable period of time.  Thirty to ninety days ought to be sufficient.

If the employee is unable to resolve the discrepancy then the employer should probably terminate the employee.

Employers should be aware that improper terminations may be a violation of federal law. The DHS wrote in its commentary that it “acknowledges that an employer who terminates an employee without attempting to resolve the issues raised in a No-Match letter, or who treats employees differently based upon national origin, perceived citizenship status, or other prohibited characteristics may be found to have engaged in unlawful discrimination under the anti-discrimination provision of the Immigration and Nationality Act of 1952 (“INA”).

Related Articles:

EEOC’s Proposed GINA Regulations Limit ADA Inquiries

New Federal Legislation: GINA


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

Posted by Christopher W. Olmsted on 11/04 at 01:37 AM
Employment LawImmigration
Wednesday, October 28, 2009

EEOC Publishes Poster Supplement For GINA Compliance

The law requires an employer to post notices describing the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information.

EEOC has revised its “Equal Employment Opportunity is the Law” poster. This new version reflects current federal employment discrimination law (including the Americans with Disabilities Act Amendments Act of 2008). The poster was revised to add information about the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009. The revised poster also includes updates from the Department of Labor.

Employers can either download and post the poster supplement, or download a new version of the whole poster. Visit the EEOC’s website at this link: http://www.eeoc.gov/posterform.html

Submitted by:
{encode=“cwo@barkerolmsted.com” title=“Chris Olmsted”}Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 10/28 at 01:51 PM
Employment Law
Friday, September 25, 2009

Protect your Workplace from the Violence and Murder of Annie Le at Yale University

Don’t let an incident like the murder of Annie Le at Yale University happen in your workplace.  Incidents of workplace violence happen regularly throughout the United States and threaten employers with liability on a daily basis.  Yet statistics reveal that most employers fail to provide training on workplace violence and many do not even have a workplace violence policy.  All of these are big mistakes for employers!  Let’s start at the beginning and understand the definition of workplace violence and how it can impact your workplace. 

Workplace violence is considered to be “any physical assault or threatening behavior or verbal abuse occurring in the work setting”.  So, as you can see, it is clearly much broader than just the homicides that get reported in the media.  Some examples of workplace violence include:

• Intimidation
• Harassment
• Bullying
• Shootings
• Threats
• Verbal Abuse
• Stabbings
• Rapes
• Suicides

Since the definition and the types of incidents that workplace violence includes are so broad, it is extremely important that employers have workplace violence policies to protect the employers from liability.  The policy will help managers and employees understand that workplace violence includes instances of bullying and harassment and not just murders.  Once your policy defines that bullies and harassers are included in the definition of workplace violence and once your policy sets forth that all instances of workplace violence must be reported, an employer would be better protected than Yale University was in the Annie Le case.  Because had Yale had such a policy and had they conducted training on their policy (I don’t have any personal knowledge of whether in fact they had such a policy or conducted such training) then perhaps the other workers in the lab would have known that when the lab technician arrested for the murder of Annie Le, Raymond Clark, was allegedly harassing other workers about the cleanliness of their mice cages, that this constituted workplace violence and should have been reported to human resources immediately.  Perhaps if it had been reported to human resources, Mr. Clark would have been disciplined and/or terminated which could possibly have prevented the ensuing violence in which Annie Le lost her life. 

Thus, the best way for an employer to protect itself is to have a policy, to provide workplace violence training and to take affirmative steps to make the workplace safer. 
What are some of those steps?  There are of course the obvious steps such as installing better lighting, security cameras and alarms and then there are the less obvious ways to make the workplace safer.  These usually involve human resources.  HR should strive to conduct background checks on all employees as well as to conduct exit interviews when an employee terminates his/her employment with that company.  This is especially important because of the various theories of legal liability that plaintiff’s lawyers love to use in these cases that include negligent hiring and negligent retention. 

Negligent hiring is based on the theory that the employer failed to conduct a background check on the employee prior to hiring the employee.  The theory surmises that had they conducted a background check they would have known that the violent employee had a history of violence in prior employment situations and thus they would have not hired him/her.  Thus, the employer was negligent in bringing this violent employee into the workplace without checking the employee’s background.  In addition, when the employee during the course of his/her employment has acted in a manner that demonstrates that he/she may be prone to violence, such as the reports that had come out that Mr. Clark allegedly harassed other employees about the cleanliness of their mice cages, and the employer has done nothing to discipline that employee, the negligent retention theory suggests that management was negligent in retaining that employee despite clear indications that the employee had previously been violent in the workplace. 

Another important way that employers can protect themselves from this type of violence is by training their managers and employees to be sensitive to the warning signs of an employee who could likely engage in workplace violence.  Time and time again in the aftermath of these tragedies, the witnesses and friends all agree that in hindsight there were warning signs that people just ignored or brushed off and did not know to report.  Such as Cho, the lone gunman at Virginia Tech who witnesses reported to be a loner who rarely spoke to anyone and someone who had been previously reported to be a danger to himself and others, all clear warning signs that were ignored.  In the recent workplace violence case at the LA Fitness gym in a Pittsburgh, Pennsylvania suburb where a lone gunman entered the gym and started shooting, people who knew the gunman also reported that he was a real loner who always kept to himself.  Such warning signs can tip off others so that they report these warning signs to human resources to be investigated which can help to prevent these instances of workplace violence. 

So employers can take actions to prevent their workplaces from the tragedy that happened to Annie Le at Yale University.  Employers can develop policies prohibiting workplace violence, deliver training on the warning signs of workplace violence and take steps to make their workplaces safer.  For more information or to schedule a workplace violence training seminar for your workplace, please contact Melissa Fleischer, Esq. at 914-417-1715 or via e-mail at .(JavaScript must be enabled to view this email address).  Please feel free to visit our website at http://www.hrlearningcenter.com.

Submitted by:
Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
http://www.hrlearningcenter.com
.(JavaScript must be enabled to view this email address)

Posted by Patrick Della Valle on 09/25 at 03:52 PM
Employment LawHuman Resources
Saturday, July 18, 2009

Important Lesson For Employers in Supreme Court’s Holding in Ricci Case

What really happened in the Ricci v. DeStefano “reverse discrimination” case.  The City of New Haven discovered after administering a test for promotions within the Fire Department that no African-Americans qualified for promotions based on the test.  Only after administering the test and seeing these results did the City for the first time realize that this could be a problem.  Then, stuck between a rock and a hard place, they decided without doing any analysis of the test that they would not grant the promotions to the white and Hispanic firefighters who had scored highest on the test because they feared that to do so would risk a lawsuit for disparate impact by the African-American firefighters. 

This case brought the two types of discrimination under Title VII in conflict with each other when the City of New Haven basically found itself in the situation where if it did not certify the test results and grant the promotions it would be faced with a disparate treatment lawsuit by the white and Hispanic firefighters but if it granted the promotions it would be faced with a disparate impact lawsuit by the African-American firefighters.  Title VII prohibits two separate types of discrimination.  Disparate Treatment discrimination is intentional discrimination based on an employee’s race, color, religion, sex, or national origin.  Disparate Impact discrimination is where a neutral practice or policy has an adverse impact on a protected class and where the practice or policy is not job-related nor justified by business necessity and where there is an alternative policy or practice that has a less discriminatory impact. 

Thus, having failed to do what they should have done before administering this test in the first place, to wit making sure through validation procedures that the test did not have a disparate impact on any protected class of employees, the City of New Haven now made matters even worse by making a decision based solely on race that it would deny promotions to the qualified white and Hispanic firefighters solely because they were white and Hispanic.  This, the Supreme Court of the United States held in a 5-4 decision violated the white and Hispanic’s civil rights under Title VII as disparate treatment discrimination because of the prohibition under Title VII against intentionally making employment decisions based on an employee’s race.  Rather, Title VII requires that employment decisions be based on job-related factors unrelated to the employee’s race.

The City of New Haven alleged that its decision to deny the promotions to the white and Hispanic firefighters based on their race should have not violated Title VII because it did so only because to do otherwise would have subjected it to liability for disparate impact under Title VII by another group of employees, namely the African-American firefighters.  The Supreme Court held that an employer would only have a valid defense and be allowed to do this if “there was a strong basis in evidence” that to deny the promotions and thus intentionally discriminate based on race against the white firefighters was necessary to remedy the disparate impact of the test on the African-American firefighters.

Here, the Supreme Court held, there was not “a strong basis in evidence” because the City acted only on its fear that it might be subject to a lawsuit by the African-American firefighters.  Although the Court did not specify what might satisfy this “strong basis in evidence” test, it seems likely that if the City had done a statistical analysis prior to deciding to not grant the promotions to the white and Hispanic firefighters it might have been in a stronger position to satisfy this test.  The Supreme Court also clearly stated that “a strong basis in evidence” required more than just a showing that a prima facie case of disparate impact could have been established.  Here, the City would only have been liable for disparate impact if even after the plaintiffs had made out a prima facie case of disparate impact discrimination, it was established that the tests for promotion were not job-related and consistent with business necessity or if there was an equally valid less discriminatory alternative that also served the City’s needs but that the City refused to use.  Since this was not the case here, the City could not establish that there was “a strong basis in evidence” that it would have been liable for disparate impact discrimination.  It appears that the new test set forth by the Supreme Court in this case requires an employer to go through the entire analysis a court would make in deciding the disparate impact case and then only if after the entire analysis it appears that the employer would lose the disparate impact case would the employer have a valid defense for engaging in intentional discrimination to avoid this result. 

So what is the important lesson for employers with regard to administering employment tests in the workplace?  Make sure you have your ducks in a row before administering any employment-related tests.  This means that employers should, prior to administering any employment tests, consult with employment counsel who can retain an expert to conduct a validation study to determine if the test would possibly have a disparate impact on any protected class.  If it would, do not administer the test without revising the test to eliminate any disparate impact on a protected class.  In addition, employers should consult with employment counsel post-test administration to assist employers in deciding what action to take if the employer should find itself in the conundrum that the City of New Haven found itself in this case. 

Submitted by:
Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
http://www.hrlearningcenter.com
.(JavaScript must be enabled to view this email address)

 

 

Posted by Patrick Della Valle on 07/18 at 11:13 AM
Employment LawHuman ResourcesRace Discrimination
Wednesday, July 01, 2009

EEOC Votes to Amend ADA Regulations

As reported here, the ADA was significantly amended effective January 1, 2009.

The amendment emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

The amendment made changes to the definition of the term “disability,” making it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

On June 17, 2009, the Commission voted to begin the process of drafting new ADA regulations, updated to match the statutory amendment. The EEOC did not specify when the proposed regulations will be published for review and comment. Expect to wait several months.

Expect the new regulations to better define to what extent a physical or mental condition must limit the ability to engage in major life activities in order to qualify as an ADA disability.

The EEOC notice can be found here.

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

Posted by Christopher W. Olmsted on 07/01 at 12:20 AM
Disability DiscriminationEmployment Law
Monday, June 08, 2009

California Appellate Court Adds New Dimension To Tip Pooling Rules

In a case titled Chau v. Starbucks, a California appellate court has added a new dimension to rules regarding tip pooling in California.

Tip pooling is the practice of sharing customer tips among staff. It is a common practice in restaurants. California’s Labor Code has a specific rule that precludes managers or supervisors from taking part in the tip pool distribution.

General Rules For Tip Sharing

Labor Code Section 351 states: “No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron . . . . Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.”

Courts and the California Division of Labor Standards Enforcement (DLSE) have interpreted Section 351 to permit tip pooling. However, owners, managers and supervisors may not share in the pool.

Moreover, according to the DLSE, in the context of table service, only employees providing direct table service may share. Such employees could conceivably include waiters and waitresses, busboys, bartenders, host/hostesses and maitre d’s. Employees who do not provide direct table service and who do not share in the tip pool include dishwashers, cooks, and chefs, except in restaurants where the chefs prepare the food at the patron’s table, in which case the chef may participate in the tip pool. But this interpretation has been recently abrogated by an appellate court case titled Budrow v. Dave & Buster’s California. In that case, the court ruled that the “direct table service” rule was not California law, and that it was proper for bartenders to share in the tip pool.

The Budrow court wrote: “Ultimately, the decision about which employees are to participate in the tip pool must be based on a reasonable assessment of the patrons’ intentions. It is, in the final analysis, the patron who decides to whom the tip is to be ‘paid, given to or left for.’ It is those intentions that must be anticipated in deciding which employees are to participate in the tip pool.” Unfortunately for employers, this is not a bright-line rule.

Section 351 also prohibits employers from requiring wage deductions based on received tips and protects an employee’s rights to tips paid on credit cards.

Through these provisions, the Legislature sought to “prevent fraud upon the public”, and “ensure that employees, not employers, receive the full benefit of gratuities
that patrons intend for the sole benefit of those employees who serve them.”

What About The Tip Jar?

The rule seems clear enough in the context of table service at a restaurant. But what about the collective tip jar often seen near the cash register at Starbucks? Can shift supervisors participate in the tip pool distribution, or does such a practice violate the Labor Code?

In the Chau v. Starbucks case, the question was of great monetary significance. At trial in this class action, the employees prevailed. The court determined that shift supervisors improperly shared in the tip pool. The trial court awarded an estimated $105 million in damages. (See a summary of the case here: Starbucks Tip Case.)

On appeal, the court reversed this award. The appellate court determined that the Labor Code prohibition did not apply to Starbuck’s collective tip jars.

The court reasoned that tips left in the jars were meant for all Starbucks employees who provide the service. The trial record reflected that the shift supervisors spent 95% of their time performing the same tasks as the other workers, and did not have the power to hire, promote or terminate. Moreover, the tip pool was divided weekly among store employees proportionate to the number of hours worked. Also, while shift supervisors shared in the pool, store managers and assistant managers did not.

The court of appeal wrote:

Because—as plaintiffs concede—section 351 does not prohibit a shift supervisor from keeping gratuities given to him or her for his or her customer services, there is no logical basis for concluding that section 351 prohibits an employer from allowing the shift supervisor to retain his or her portion of a collective tip that was intended for the entire team of service employees, including the shift supervisor. In this situation, the shift supervisor keeps only his or her earned portion of the gratuity and does not “take” any portion of the tip intended for services by the barista or baristas. If—as is undisputed here—the tips were left in the collective tip boxes for the baristas and shift supervisors, and it was permissible for Starbucks to require an equitable division of the tips according to the number of hours worked by each employee, it is not a violation of section 351 for the employer to maintain a policy ensuring those service employees benefit from a portion of those tips. Because a shift supervisor performs virtually the same service work as a barista and the employees work as a “team,” Starbucks did not violate section 351 by requiring an equitable distribution of tips specifically left in a collective tip box for all of these employees.

Employers should not simply assume that supervisors can share in the division of tip jars. This decision was fact-dependent. However, where the facts are analogous to the Starbucks case, shift leads or supervisors may properly share in the tip pool. But before implementing a new policy, monitor this case. There have been a number of California appellate cases on the topic of tips, and the issue may be headed for the California Supreme Court.

For more information on tips, see this FAQ.

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

Posted by Christopher W. Olmsted on 06/08 at 10:18 PM
Employment Law
Friday, June 05, 2009

Employee Handbook Red Flags For Multi-State Employers

Employee Handbook Red Flags For Multi-State Employers

Many employers are not aware that when they draft their employee handbook there are many policies that need to be different based upon the state in which the employer is operating.  This can be a real nightmare for HR.  The best thing to do is make a list of all the states in which you operate.  Remember that this includes states in which even just one employee may be working remotely.  You would need to comply with the local laws and regulations for that state as well. 

Let’s assume that you operate in 10 different states.  You should prepare a checklist to mark all the policies in which you will need to check the state laws to ensure that you are in compliance.  The best practice is usually to create an employee handbook that is in compliance based on federal laws.  You should then create a local practices section of the handbook and in this section have local and state laws in each of the 10 states in which you operate that may be different from the main employee handbook. 

What are some of the policies that could cause you problems that you should include in this checklist? 

FMLA

The first is of course FMLA.  Many, although not all, states have their own FMLA laws that sometimes require more leave than what is required under the federal FMLA.  For instance, Connecticut requires that employers provide eligible employees with 16 workweeks of leave in any 24-month period.  In addition, in Connecticut, an eligible employee only has to have worked for 1000 hours in the 12-month period immediately preceding the leave rather than the 1,250 hours required by federal law.  Also under the Connecticut family leave law an eligible employee can take leave to serve as an organ or bone marrow donor.  New Jersey requires that employers provide 12 weeks of leave in a 24 month period but it is only for the serious health condition of a parent, child or spouse or the birth or placement for adoption or foster care of a child.  There is no New Jersey FMLA for your own serious health condition.  Moreover, this New Jersey family leave law applies to employers with 50 employees anywhere in the country as long as one of the employees is employed in New Jersey.  In addition, to be an eligible employee under New Jersey law as we saw was the case in Connecticut, the employee need have only worked 1,000 hours in the 12 months immediately preceding the leave.  Also, the definition of family member in New Jersey includes leave to care for an in-law or step-parent.  New York does not have its own state family leave law.  Be sure that you check your state’s laws to determine if (1) there is a state family leave law and (2) if it provides something different than does the federal FMLA. 

Jury Duty Leave

Another policy that will have local implications is your jury duty leave policy.  Some states such as New York require that the employee be paid $40 for the first three days of leave.  Massachusetts requires that for employees that were scheduled to work for three months preceding the jury duty leave, that they be paid their regular wages for the first three days of jury duty leave. 

Access to Personnel Files

Another area that is dictated by local state practice would be access to personnel records.  Different states have different laws about whether employees have the right to see or copy their personnel file.  You should make sure that you know the law of each of the states in which you operate and insert all relevant information into the local practices section of your employee handbook.

Vacation and Wage Deductions

Vacation and wage deductions is another big area of concern.  Many times employers allow employees to borrow PTO or vacation time when they have not yet accrued such time.  Then if the employee is terminated prior to accruing the time, the employer requires that the employee pay back the time and sets forth that this will be done by deducting the amount from the employee’s last pay check.  This is unlawful in many states.  Make sure that you check each of the state laws in the states in which you operate to find out what the laws for wage deductions are in that particular state.  In addition, each state has specific laws about an employee’s final paycheck when the employee has been terminated or has voluntarily terminated their employment.  It is important that you are familiar with these state laws so that you can ensure that the employee receives their final paycheck within the time limits specified by the law in your particular jurisdiction. 


Short-Term Disability Benefits

In addition, some states such as New York require that employers provide short-term disability benefits.  Make sure that you know the law in your state regarding whether you will need to provide your employees with short-term disability benefits. 

 

Other State Laws

States also have a variety of other laws that employers need to be aware of.  These laws can change and/or become law quickly so it is important for you to be aware of new laws in each of the states in which you, as a multi-state employer, operate.  For instance, many states have laws regarding women’s rights to express breast milk in the workplace (i.e. New York recently passed this law); leave to donate blood or be a bone marrow donor and domestic violence leave laws.  Another area that is being regulated by states and local municipalities is cell phone and texting laws.  Be sure to keep abreast of local laws in all the areas in which you operate. 

 

 

Conclusion

These local state laws can get employers in deep trouble.  Employers should be proactive and keep abreast of all the relevant state laws in the states in which they operate.  Employers should ensure that their employee handbooks set forth in a local practices section information to ensure that they are in compliance with each state’s laws.

Submitted by:  Melissa Fleischer, Esq.
              President
              HR Learning Center LLC
              http://www.hrlearningcenter.com
              .(JavaScript must be enabled to view this email address)

Posted by Patrick Della Valle on 06/05 at 01:21 PM
Employment Law
Thursday, May 14, 2009

More EEOC Commentary on Swine Flu: “ADA-Compliant Employer Preparedness For the H1N1 Flu Virus”

There is an additional web page on the EEOC’s website addressing ADA issues related to employer preparedness for epidemics such as swine flu:

ADA-Compliant Employer Preparedness For the H1N1 Flu Virus

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

 

 

Posted by Christopher W. Olmsted on 05/14 at 11:23 PM
Disability DiscriminationEmployment Law
Tuesday, May 12, 2009

EEOC Says: Avoid Swine Flu Discrimination Like The Plague

The EEOC has warned employers to avoid swine flu discrimination. Really? Swine flu discrimination? Did the EEOC sneak in a new protected class?

Well, not exactly. On May 11th the EEOC published on its website a short comment titled “Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu).” The EEOC suggests that employers should refrain from national origin discrimination against Mexicans.

In other words, employers should refrain from making employment decisions based merely on the fact that an individual hails from Mexico. For example, refusing to hire individuals of Mexican origin because of a belief that Mexicans may be ill with swine flu could run afoul of Title VII, not because of swine flu, but because of the nationality factor.

Presumably a neutral swine flu policy would pass muster. A neutral policy that requires any infected individuals, regardless of national origin, to take a leave of absence would probably not violate Title VII. The EEOC’s website would be more helpful to employers if it addressed appropriate neutral policies.

On the swine flu web page, the EEOC also cites the Americans With Disabilities Act (ADA). The EEOC does not expressly state, however, that swine flu would qualify as a disability under the ADA. Again, perhaps the EEOC could help employers by elucidating on this issue.

In most cases a temporary sickness such as the flu will not qualify as a disability. Nevertheless, the EEOC points to its publications addressing disability-related inquiries and medical examinations, as will as pre-hire questions and medical exams.

It is conceivable that employers could delve into medical issues in connection with victims of swine flu, say, perhaps, in connection with an FMLA or other leave of absence. As may be the case whenever employers address medical concerns, medical inquiries associated with swine flu cases should be handled with care. Keep the inquiries narrowly tailored to focus job-related issues. Avoid deviating into a general fitness for duty examination that might inappropriately evaluate disabilities. Avoid singling out protected classes. Maintain confidentiality.

As the nation’s attention is fixed on this topic of public health, the EEOC has appropriately suggested that EEO practices may be implicated. The substance of the comments are a little thin, doubtless due to the spontaneity of the outbreak. Perhaps the EEOC will develop guidelines in preparation for future outbreaks.

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

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