New I-9 Form Now Available
A new I-9 form is now available from the U.S. Citizenship and Immigration Services. What's changed, you might ask? Good question. Nothing substantive, merely the expiration date. Ironically, the Paperwork Reduction Act requires government forms to carry an expiration date, and because the old I-9 form expires June 30, 2008, the USCIS has to publish a new one. Still using the old form? Don't worry - using the new one won't be mandatory until 30 days after appearing in the Federal Register (and this hasn't even happened yet), but you can start using the new form now if you want to.
The last substantive changes to the I-9 were made in 2007. If you're interested, you can read the USCIS's Press Release describing those changes. If you have general questions about the I-9, read the 2007 I-9 Handbook for Employers, also from the USCIS. And, feel free to complain to your congressperson about the Paperwork Reduction Act.
Female Crane Operator Sues for Sex Bias Over Urination Policy
Ever wonder how the people who operate those giant construction cranes at a high-rise construction site take bathroom breaks? Thanks to a new case, we now know. In Johnson v. AK Steel Corp., the Southern District of Ohio ruled last month that a female crane operator may proceed with state and federal gender discrimination claims because her employer's policy requiring crane operators to urinate over the sides of their cranes (instead of climbing down to take bathroom breaks) discriminated against women. The court said that an employment practice may have a "significantly discriminatory impact" when it "adversely affects the health of female employees while leaving male employees unaffected." Well duh.I don't know about you, but I'll think twice the next time I walk past a construction site.
Idaho Supreme Court Clarifies Covered Employment for Unemployment Insurance Tax Purposes
In Excell Construction Inc. v. Idaho Department of Commerce and Labor, the state's high court provided a detailed analysis of each the factors to be considered in determining whether a worker is covered for tax purposes. The court adopted a list of fifteen factors an employer should consider in making that determination (and that the courts will consider to see if the employer got it wrong). The case is of critical importance for employers who rely heavily on independent contractors to assure that they are not classified as employees for unemployment insurance tax purposes.
New Idaho Statute Expands Noncompetition Agreements
A new Idaho statute (Idaho Code 44-2701 et seq.) set to go into effect July 1, 2008 defines presumptively reasonable limitations applicable to covenants against competition and solicitation by employees and independent contractors.
Under the statute, a noncompetition period of up to 18 months are presumptively reasonable, as is a geographic scope that includes anywhere the employee provided services or "had a significant presence or influence." The law also encourages courts that find such provisions unreasonable to determine the intent of the parties and modify the covenant to make it enforceable.
This should be good news for Idaho employers, who have historically received with a chilly reception in Idaho courts when trying to enforce noncompetition agreements.
Under the statute, a noncompetition period of up to 18 months are presumptively reasonable, as is a geographic scope that includes anywhere the employee provided services or "had a significant presence or influence." The law also encourages courts that find such provisions unreasonable to determine the intent of the parties and modify the covenant to make it enforceable.
This should be good news for Idaho employers, who have historically received with a chilly reception in Idaho courts when trying to enforce noncompetition agreements.
Supreme Court Accepts Review of AT&T Retirement Benefits Case
Earlier this week, the U.S. Supreme Court agreed to consider whether employers may be liable under Title VII for not giving female employees full credit for pregnancy leaves in calculating retirement benefits. AT&T Corp. v. Hulteen, U.S., No. 07-543.
The Ninth Circuit ruled last August that AT&T violated Title VII by calculating the female plaintiffs' retirement benefits based on a system which denied them credit for pregnancy leaves taken before the 1978 by the Pregnancy Discrimination Act of 1978, while giving credit for other types of leaves. Hard to say which way this one will go, but odds are it will be a 5-4 decision. Stay tuned.
The Ninth Circuit ruled last August that AT&T violated Title VII by calculating the female plaintiffs' retirement benefits based on a system which denied them credit for pregnancy leaves taken before the 1978 by the Pregnancy Discrimination Act of 1978, while giving credit for other types of leaves. Hard to say which way this one will go, but odds are it will be a 5-4 decision. Stay tuned.
Big Day at the Supreme Court: Four New L&E Decisions
Today the U.S. Supreme Court issued four labor and employment-related decisions; none, however, were big surprises or substantial changes in the law.First, in Meacham v. Knolls Atomic Power Laboratory, the Court held 8-0 that an employer defending an Age Discrimination in Employment Act case bears the burden of proving a "reasonable factors other than age" or "RFOA" affirmative defense. Truth be told, most defense lawyers have assumed that it was the employer's burden to prove the affirmative defense; this decision simply confirms that assumption. Continue Reading...
Oregon Court of Appeals: Keep Accommodating Medical Marijuana (For Now....)
In Emerald v. Bureau of Labor, The Oregon Court of Appeals affirmed a Bureau of Labor and Industries determination that an employer must reasonably accommodate an employee's off-duty medical marijuana use. However, the case was affirmed on a technicality - again leaving Oregon employers wondering if they really have to accommodate an employee's medical marijuana use. Continue Reading...
Oregon Court of Appeals Upholds Employment Discrimination Statute
Oregon's anti-discrimination statute allows an employee alleging employment discrimination to file either a lawsuit (which results in a jury trial) or an administrative complaint with the Oregon Bureau of Labor and Industries (which results in an administrative hearing with no jury). In Emerald v. Bureau of Labor, the employer argued that allowing an employee to arbitrarily choose whether or not there will be a jury trial violates the employer's right to a jury trial under the Oregon Constitution. Not so, ruled the Oregon Court of Appeals earlier this week.
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Former Official Sues NASCAR for Race, Sex Harassment
Today's big news: Former NASCAR technical inspector Mauricia Grant filed suit against the auto racing league for sexual and racial harassment, discrimination and retaliation, seeking $225 million dollars. According to Grant's complaint, she was referred to as "Nappy Headed Mo" and "Queen Sheba" by co-workers, was often told she worked on "colored people time" and was frightened by one official who routinely made references to the Ku Klux Klan. In addition, Grant said she was subjected to sexual advances from male co-workers, two of whom allegedly exposed themselves to her, and graphic and lewd jokes. Two weeks after Grant complained about this treatment, she was terminated. If Grant's claims have merit, she's certainly entitled to just compensation. But whenever I see a plaintiff ask for huge sums of money (and for an employment case, $225 million is "huge"), this is the image it conjures in my mind.
Supreme Court: No "Class of One" Claims
This morning the U.S. Supreme Court struck a blow for public employers, ruling that the "class of one" theory does not apply in public employment cases.
In Engquist v. Oregon Department of Agriculture, the plaintiff alleged that she was fired not because she was a member of a protected class (such as race, sex, age, disability, national origin, etc), but simply for "arbitrary, vindictive, and malicious reasons." In other words, she was a "class of one" and her employer fired her because it simply didn't like her, and she claimed that termination violated her constitutional due process rights.
While other Supreme Court decisions had upheld the "class of one" theory outside of the employment context, in this case the Court concluded that extending the class-of-one theory to public employees would lead to undue judicial interference in state employment practices and invalidate public at-will employment.
For public employers, this is good news: had the court upheld the "class of one" theory, it would have effectively provided for lifetime employment for public employees (of course, it seems like they have that already).
For private employers, this case is purely academic and a reminder of how good you have it: there has never been a "class of one" theory in the private workplace (no matter how much some employees seem to think there is).
In Engquist v. Oregon Department of Agriculture, the plaintiff alleged that she was fired not because she was a member of a protected class (such as race, sex, age, disability, national origin, etc), but simply for "arbitrary, vindictive, and malicious reasons." In other words, she was a "class of one" and her employer fired her because it simply didn't like her, and she claimed that termination violated her constitutional due process rights.
While other Supreme Court decisions had upheld the "class of one" theory outside of the employment context, in this case the Court concluded that extending the class-of-one theory to public employees would lead to undue judicial interference in state employment practices and invalidate public at-will employment.
For public employers, this is good news: had the court upheld the "class of one" theory, it would have effectively provided for lifetime employment for public employees (of course, it seems like they have that already).
For private employers, this case is purely academic and a reminder of how good you have it: there has never been a "class of one" theory in the private workplace (no matter how much some employees seem to think there is).
Supreme Court Expands Plaintiffs' Relief in Race and Age Discrimination Cases
On May 27, the Supreme Court held that two civil rights laws prohibitretaliation against employees who complain about discrimination, even though neither law actually mentions retaliation. In CBOCS West, Inc. v. Humphries, the Court held that a restaurant employee could sue his employer for retaliation under Section 1981 of the Civil Rights Act of 1866 -- a law that prohibits race discrimination in employment, but does not mention retaliation. In Gomez-Perez v. Potter, the Court similarly held that the federal-sector provisions of the Age Discrimination in Employment Act prohibit retaliation, even though they also are silent on retaliation. The Court reasoned that retaliation is simply another form of discrimination made unlawful by the two laws.
While Gomez-Perez applies only to federal employees, Humphries will impact private-sector employers in two ways: first, unlike Title VII, Section 1981 has no damage caps and for a plaintiff, the sky is the limit; second, while Title VII does not apply to employers with under 15 employees, Section 1981 applies to all employers regardless of size.
While Gomez-Perez applies only to federal employees, Humphries will impact private-sector employers in two ways: first, unlike Title VII, Section 1981 has no damage caps and for a plaintiff, the sky is the limit; second, while Title VII does not apply to employers with under 15 employees, Section 1981 applies to all employers regardless of size.
Federal Contractors Ordered to Use E-Verify
In an Executive Order dated June 6, 2008, President Bush ordered that all federal contractors will be required to use the E-Verify system to verify the employment eligibility of employees working on federal contracts. E-Verify is a internet-based system operated jointly by the Department of Homeland Security and the Social Security Administration, which allows employers to check applicant's employment authorization on-line. While federal contractors are not yet required to use E-Verify, the requirement will go into effect 30 days following the publication of a final rule by the DHS.
No Gattaca? Bush Signs Genetic Information Nondiscrimination Act
On May 21, President Bush signed the Genetic Information Nondiscrimination Act, which prohibits discrimination against individuals on the basis of their genetic information in both employment and health care. If you really want to genetically test your employees (and who doesn’t?) act now: The employment discrimination provisions won’t take effect until November 2009, and the health care provisions aren’t effective until May 2009. (For those baffled by the reference, "Gattaca" is a great movie about genetic information discrimination (with Ethan Hawke and Uma Thurman!).
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Nurses Button Up: Ninth Circuit Nurses May Wear Union Buttons at Work
The Ninth Circuit Court of Appeals recently ruled that a Spokane hospital could not lawfully prohibit nurses from wearing union buttons in areas where they only "might" encounter patients or family members. Health care employers should review their uniform policies to make sure union insignia and other political buttons and stickers are only prohibited in patient care areas and not in other nonpatient areas (such as kitchens, break rooms and hallways), even if employees might casually encounter patients there.
Oregon Employees Have No Wage Claim for Missed Rest and Meal Breaks
The Oregon Supreme Court ruled that employees could not sue their employer for back pay over missed rest and meal breaks. Want to know more? You can either read the court’s opinion, or read a more concise yet equally informative summary of Garfur v. Legacy written by yours truly. Note to employers: don't start making your employees skip their breaks just yet. BOLI can fine you up to $1,000 per violation or, if you're really eggregious, throw you in jail!
Howard Stern + Work = Hostile Work Environment
The Eleventh Circuit (which covers Alabama, Florida and Georgia) held late last month that a female employee was subjected to an unlawful hostile work environment on the basis of her sex in part because of "vulgar radio programming" that was played daily in her workplace. Reeves v. C.H. Robinson Worldwide Inc., No. 07-10270, April 28, 2008.
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Ignore this Court Order: Executives Hit with Subpoena Scam
This last month, thousands of high-ranking executives across the country received phony subpoenas by email commanding them to appear before a grand jury in the U. S. District Court in San Diego, California. If you received one of these emails, feel free to ignore it. For more information, check out Stoel Rives’ update. Don’t ignore a real subpoena, however, or you might end up here.
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