E-Verify Delayed (Again) Until May 21
Another delay for implementation of the mandatory E-Verify system: The Department of Homeland Security's Citizenship and Immigration Services announced today that it will delay mandatory use of E-Verify until May 21, 2009. Click here to read DHS's press release. Why the delay? The Obama Administration wants additional time to review this and other rules that carried over from the Bush era.
As previously reported in the Stoel Rives World of Employment, President Bush's executive order would have made using E-Verify mandatory starting January 15, 2009 for federal contractors with projects exceeding $100,000 and for sub-contractors with projects exceeding $3,000. A coalition of employer's groups sued, seeking an injunction against the rule. Because of the lawsuit, the effective date of the new rule had previously been delayed until February 20, 2009.
President Obama to Sign Ledbetter Fair Pay Act on January 29, 2009
As expected, the Lilly Ledbetter Fair Pay Act passed Congress (the House passed the Senate version 250-177 on January 27). President Obama has announced he will sign the bill into law--the very first bill he will sign--on January 29. The Act will overturn a U.S. Supreme Court decision that limited the time frame for bringing pay discrimination claims. (For more information on the Act and its history, check out this previous post here at the Stoel Rives World of Employment).
Here's an important wrinkle: as passed, the Act will be retroactive, and will apply to all claims of discrimination in compensation that are pending on or after May 28, 2007. This may have an impact on many pending unfair and unequal pay lawsuits.
New Form I-9 Available For Download
Finally - the new Form I-9 is here! Click here to download the new Form I-9. Note: the new form is for use only on or after April 3, 2009; until then, keep using the current Form I-9.
What's the Form I-9 you ask, and what's all the fuss? All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. The list of acceptable documents can be found on page 4 of the forms.
Supreme Court Broadens Scope of Title VII's Anti-Retaliation Protections
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The U.S. Supreme Court issued an important decision yesterday, clarifying that employees who report discrimination in response to an employer's internal investigation are protected by the anti-retaliation provisions of Title VII. Click here to download the case: Crawford v. Metropolitan Government of Nashville.
In Crawford, the plaintiff was interviewed as part of her employer's investigation into another employee's complaint of sexual harassment. In response, Crawford reported harassment that she experienced. Soon thereafter, Crawford's employment was terminated; the employer claimed the plaintiff embezzled funds, but Crawford filed a lawsuit alleging the termination was in retaliation for her participation in the investigation. The district court dismissed Crawford's lawsuit on the grounds that, while Title VII makes it unlawful to retaliate against an employee because she "opposed" sexual harassment, Crawford did not "oppose" anything; she merely answered questions in response to an internal investigation.
The Supreme Court reversed (9-0!), holding that "oppose" should be read broadly. As Justice Souter wrote:
"'Oppose' goes beyond 'active, consistent' behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to “oppose” slavery before Emancipation, or are said to “oppose” capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it 'opposition' if an employee took a stand against an employer’s discriminatory practices not by 'instigating' action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons."
What does this mean for employers? For starters, the number of employees protected by Title VII's anti-retaliation provisions has significantly increased. When making employment decisions -- terminations, layoffs, discipline -- employers should include passive participants in discrimination investigations in their list of "high risk" employees. And, even though Crawford considered only Title VII, we expect courts will apply its ruling to the similar anti-retaliation provisions in other statutes as well, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, and others.
Tenth Circuit Affirms Dismissal of WARN Act Case
We don't need to tell you there's a recession going on, and that a recession means layoffs. But we will remind you that layoffs may implicate the Worker Adjustment and Retraining Notification (WARN) Act - the federal law that requires employers to give 60 days' notice of certain mass layoffs and plant shutdowns.
Sometimes giving 60 days' notice of a layoff just isn't possible, and the law makes exceptions in some circumstances. A recent case from the Tenth Circuit Court of Appeals illustrates one of those exceptions. In Gross v. Hale-Halsell Co., the employer successfully relied on the "unforeseeable business circumstances" exception to WARN. In that case, the employer--a grocery wholesaler and distributor--was forced to lay off over 200 employees when its largest customer suddenly dropped its account. The court held that the employer had no choice but to lay its employees off (the employer subsequently declared bankruptcy), and that it gave as much notice as was practicable under the circumstances.
Notwithstanding the outcome of Gross, courts are notoriously reluctant to apply the WARN Act exceptions; before relying on an exception to bypass giving notice of a qualifying layoff or plant closure, it is probably a good idea to consult legal counsel. There is also good, free information from our friends at the U.S. Department of Labor to help guide you through troubled times and to determine whether the WARN Act may apply to you. Just click below to download the information:
- For a basic overview of the law, here's a basic WARN Act Fact Sheet.
- For more detailed information, download the Employer's Guide to the WARN Act (a great resource and our personal favorite)
- Next, if your layoff is caused by an "act of God," you might want to download the WARN Act Natural Disaster Fact Sheet
- And finally, you can read what the DOL is telling your employees: the Workers' Guide to the WARN Act, and for Spanish-speaking employees, the Guía para el Trabajadores
Senate Passes Lilly Ledbetter Bill 61-36
The Senate voted 61-36 yesterday to pass the Lilly Ledbetter Fair Pay Act, which is intended to overturn a U.S. Supreme Court decision that limited the time frame for bringing pay discrimination claims. The bill now will have to be reconciled with the House's version of the bill (H.R. 11), approved on a 247-171 vote Jan. 9, before President Obama can sign it into law.
The bill is named after Lilly Ledbetter, a former supervisor at a Goodyear tire plant in Alabama, who discovered that she had been receiving less pay than her male counterparts who were doing the same work. She discovered this by an anonymous note after working for the company for nearly 20 years. Her subsequent lawsuit was fought all the way to the U.S. Supreme Court. In May 2007, the Court ruled in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), that the time limits for filing a discrimination charge with the Equal Employment Opportunity Commission start to run when the employer makes a discriminatory decision about the employee's compensation, not each time the employee receives a paycheck affected by discrimination. Though she lost her lawsuit, Ms. Ledbetter became a champion for equal pay for women.
The bill would reverse the Ledbetter ruling by amending most federal anti-discrimination laws to provide that the charge-filing periods—300 days in most states and 180 days in the few states that do not have a fair employment agency—would be triggered whenever an employee is affected by application of a discriminatory compensation decision or practice.
Oregon BOLI: No Changes to OFLA Regulations (yet...)
As previously reported here at the Stoel Rives World of Employment, new federal Family and Medical Leave Act (FMLA) regulations went into effect on January 16, 2009. Oregon has its own analog to FMLA, the Oregon Family Leave Act (OFLA), with its own regulations. FMLA applies to employers with 50 or more employees, while OFLA applies to employers with with 25 or more employees; Oregon employers with 50 or more employees are required to follow both laws.
Historically, OFLA and its regulations have tracked federal law (with a few notable exceptions that are more generous to employees). However, following implementation of the new FMLA regulations, there is now a disconnect between the two laws. The Oregon Bureau of Labor and Industries (BOLI) announced recently that even though there are new discrepencies between the two laws, it will not immediately update the OFLA regulations to match the new FMLA rules. (Click here to read BOLI's press release on its decision.) Instead, BOLI will conduct informational hearings in February 2009 to determine whether updates to the OFLA regulations are warranted. In the meantime, BOLI issued this brief on implementing OFLA under the new FMLA rules, which provides an overview of the new differences between OFLA and FMLA and how employers can safely navigate the two laws.
Where does that leave Oregon employers that are covered by both OFLA and FMLA? The rule of thumb is to apply both sets of laws, and then follow the one most generous to employees. The Stoel Rives World of Employment will follow the hearings on the OFLA regulations and provide updates to let you know when and if there are any changes.
Reminder: New FMLA and Military Leave Regulations Take Effect Today
In case you haven’t heard, new Family and Medical Leave Act (FMLA) regulations take effect today, Friday, January 16. Some highlights of the new regulations include:
- Regulations covering the recently instituted military family leave laws
- Expanded FMLA general notification requirements
- New individual eligibility notification and leave designation requirements
- New forms for eligibility notification, leave designation, and health care provider and military family leave certifications
- New fitness-for-duty certification requirements
- New leave tracking and notification requirements
- New certification and recertification requirements and procedures
There are too many changes to explain in detail in this email message, but we have you covered: Follow this link to download our detailed memorandum on the new regulations. Follow this link to download the new FMLA forms and poster. Or if you're really into reading lengthy goverment regulations (and who isn't, really?) you can download the new FMLA regulations here.
Oregon Issues New Rest Break Regulations
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The Oregon Bureau of Labor and Industries (BOLI) issued a revised regulation earlier this week on employees’ meal breaks which will be of interest to many smaller employers.
The revised regulation, which is effective as of January 12, 2009, retains the basic requirement that employees normally be provided with a 30-minute, unpaid meal period in which they are relieved of all duties (for shifts longer than 6 hours). However, it adds additional options for employers who do not provide the full 30-minute meal period and/or relieve an employee completely from duty (such as when the employee remains on-call).
Under the new regulation, an employer is not required to provide an employee with a 30-minute meal period in which the employee is relieved of all duties if the employer can demonstrate that:
- failure to provide a meal period was caused by unforeseeable equipment failures, acts of nature or other exceptional and unanticipated circumstances that only rarely and temporarily preclude the provision of a meal period;
- industry practice or custom has established a paid meal period of less than 30 minutes (but no less than 20 minutes) during which employees are relieved of all duties; or
- providing a 30-minute, unpaid meal period where the employee is relieved of all duties would impose an “undue hardship” on the operation of the employer’s business (the regulations also provide guidance on what is an “undue hardship”).
An employer that does not provide meal periods under the “undue hardship” exception must comply with two additional requirements: (a) the employer must also provide the employee adequate periods in which to rest, consume a meal, and use the restroom without deduction from the employee’s pay; and (b) the employer must first provide to each employee a notice provided by BOLI regarding rest and meal periods in the language used by the employer to communicate with the employee. BOLI will make such notices available by March 16, 2009.
Want more information? Click here to download BOLI's press release explaining the new regulations. Or click here to download the full text of the new regulation, including the definition of undue hardship. Or, click here if you want BOLI's full run-down of the law on rest and meal breaks in general.
Time Out for E-Verify: Mandatory Use Rule Suspended Until February 20
Federal contractors take note: the rule requring mandatory use of the E-Verify system has been suspended until at least February 20, 2009.
As previously reported in the Stoel Rives World of Employment, President Bush's executive order would make using E-Verify mandatory starting January 15, 2009 for federal contractors with projects exceeding $100,000 and for sub-contractors with projects exceeding $3,000. A coalition of employer's groups sued, seeking an injunction against the rule.
The parties reached an agreement with the U.S. Department of Justice to delay the effective date of the new rule until February 20, 2009 – allowing time for an expedited hearing on the merits of the plaintiffs' legal case. The Federal Court has accepted that agreement on January 12, and set up a briefing schedule that should have everything worked out by the new implementation date. If you like reading legal documents, click to read the court's order. And as always, watch the Stoel Rives World of Employment for more updates.
Ledbetter, Fair Pay Acts Pass House
There was a lot of fairness on Capitol Hill last week: the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act both passed the House of Representatives on Friday, January 9, 2009. For those of you keeping score at home, the Ledbetter Act passed 247-171, and the Paycheck Fairness Act passed 256-163. Both bills will proceed to the Senate, and they are expected to pass there as well.
The Ledbetter Act is named after a losing plaintiff in an oft-criticized Supreme Court case, Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). There, the Court held that the time limits for filing a discrimination charge with the Equal Employment Opportunity Commission (EEOC) start to run when the employer makes a discriminatory decision about the employee's compensation, not each time the employee receives a paycheck affected by discrimination. The proposed Act would reverse that ruling by amending Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act to provide that the filing periods—300 days in most states and 180 days in the few states that do not have a fair employment agency—would be triggered whenever an employee is affected by a discriminatory compensation decision or practice.
The Paycheck Fairness Act would increase remedies in Equal Pay Act cases, making available compensatory and punitive damages, authorizing class actions, and mandating training and other outreach efforts by the EEOC and the Labor Department's Office of Federal Contract Compliance Programs on wage discrimination issues.
New W-4 Forms Available; No New Form I-9 Yet...
New year, new forms: The Internal Revenue Service has released new W-4 Forms for 2009, and we have them for you right here! Just click below to download:
A 2009 Spanish version is pending approval, and we'll post it when it is available.
As previously reported here at the Stoel Rives World of Employment, employers will be required to adopt the new Form I-9 (Verification of Employment Eligibility) by February 2, 2009. We'd love to give you a link to download it, but guess what: it's not available yet. We'll keep watching and post it here as soon as it's released.
New FMLA Forms and Poster Now Available For Download
As previously reported in the Stoel Rives World of Employment, new Family and Medical Leave Act (FMLA) regulations will take effect January 16, 2009. The DOL has now published six new optional forms contemplated by the new regulations, and as promised, the Stoel Rives World of Employment has them for you right here (just click on the form number to download):
- Employee’s Serious Health Condition (WH-380E)
- Family Member’s Serious Health Condition (WH-380F)
- Notice of Eligibility and Rights and Responsibilities form (WH-381)
- Designation Notice to Employee of FMLA Leave (WH-382)
- Certification of Qualifying Exigency for Military Family Leave (WH-384)
- Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385)
And as if that's not enough, there's a new mandatory FMLA poster to put up in your workplace, which you can download here: 2009 FMLA Poster. As you know, every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions - this new poster will meet those requirements.
WSJ Reports EFCA Unlikely to Pass Soon
According to yesterday's Wall Street Journal, the Employee Free Choice Act (EFCA) is not likely to become law in the first 100 days of the Obama Administration. Because Republicans are threatening a filibuster, congressional Democrats are likely to instead focus their early efforts on two other low-hanging fruit: the Lilly Ledbetter Fair Pay Act, which would extend the statute of limitations under civil-rights laws for bringing suits against employers over pay; and the Paycheck Fairness Act, which would strengthen remedies under the Equal Pay Act of 1963 for women.
If passed, EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election. It is expected to drastically increase union organizing and unionization rates.
Threats of a Senate filibuster and a presidential veto prevented EFCA's passage in 2008, but the labor movement and congressional Democrats hoped that a filibuster-proof majority in the Senate would allow its passage in 2009. We're not ready to write EFCA off just yet - what remains to be seen is if a compromise version will sufficiently appease the act's proponents while weakening opposition. Stay tuned to the Stoel Rives World of Employment for more updates.
Business Groups Sue to Block E-Verify Rule
The Society for Human Resource Management, the U.S. Chamber of Commerce, and three other groups filed a lawsuit late last month challenging the legality of an executive order that requires federal contractors to use E-Verify, the federal government's Web-based system that uses Social Security files to ensure that employees are legal immigrants or citizens eligible to work in the United States. Click here to read a copy of the complaint: Chamber of Commerce of the United States of Am. v. Chertoff, D. Md., No. 8:08-cv-03444-AW (12/23/08).
President Bush signed an executive order in June that made E-Verify mandatory starting January 15, 2009 for federal contractors with projects exceeding $100,000 and for sub-contractors with projects exceeding $3,000. The lawsuit seeks an injunction against the January 15 implementation of the executive order.
According to SHRM's press release, the system isn't ready for widespread use and would place an unreasonable burden on employers. “This massive expansion of E-Verify is not only bad policy, it’s unlawful,” according to a U.S. Chamber of Commerce's press release. “The Administration can’t use an Executive Order to circumvent federal immigration and procurement laws. Federal law explicitly prohibits the secretary of Homeland Security from making E-Verify mandatory or from using it to re-authorize the existing workforce.”
The Stoel Rives World of Employment will be watching this lawsuit, and we'll post updates as they occur. For now, it's safest to assume that the order will take effect January 15 and that contractors will be required to use the system. If that changes, we'll let you know.
Immigration: More Changes to Form I-9 On The Way
U.S. Citizenship and Immigration Services (USCIS) last month submitted an interim final rule intended to streamline the Employment Eligibility Verification (Form I-9) process. Click here to read the USCIS' Press Release on the interim final rule.
One result of this new rule will be a new Form I-9, which will be made available sometime in the next two months; until then, continue to use the current Form I-9. Once the new I-9 is available, we'll post it here on the Stoel Rives World of Employment. Among other changes, the new form will narrow the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. The revised Form will also include revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.
Remember: employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. For more information, check out the USCIS' information website in the Form I-9.
