Tuesday, May 17, 2011

USCIS' I-9 Central is open for business

USCIS announced that it has a newly-launched I-9 headquarters aimed at making employer compliance with work authorization more accessible and easier. Dubbed I-9 Central, press release notes that this is yet another step by USCIS to provide "employment-related enhancements" for the business world.

With USCIS working toward making compliance "easier," it would not be a stretch to think that the expectations of compliance will increase as well. For more information about I-9 audits, check out these previous blog posts.

Friday, May 13, 2011

New Tennessee Law Prohibits Maintenance of Membership Clauses in Labor Agreements

On May 5, 2001, Tennessee Governor Bill Haslam signed a new law making it unlawful for employers and unions to include a “maintenance of membership” clause in their collective bargaining agreement. A maintenance of membership clause requires those employees who are members of the union to continue their union membership (i.e., keep paying dues to the union) until the collective bargaining agreement expires. Only then can the employee withdraw from the Union. Tennessee’s new law makes such arrangements illegal in the future, but does not affect existing contracts. Going forward, an employee’s right to withdraw from the union cannot be restricted by contract between the company and the union. Legislators who supported the new law felt that such clauses were inconsistent with the state’s right to work laws and that “employees should be permitted to decide for themselves whether or not to join or financially support a union.” Additionally, it also appears that the law may prohibit an employee from entering into an agreement with a union that would restrict the employee’s right to withdraw from union membership. It would seem this law would have an impact on bargaining table conduct as well as membership agreements between a union and employees/membership in the union.

The bill signed by the governor can be found at: http://state.tn.us/sos/acts/107/pub/pc0178.pdf

Thursday, May 12, 2011

Is your workers' comp carrier also verifying your employees' eligibility to work?

Some insurance companies may be denying payment of benefits on the basis that unauthorized workers should not have been employed in the first place and thus are not eligible to be returned to work (or receive payments for the difference in wages for light duty work versus the employee's regular position). How does the company know that the worker is unauthorized? Well, some may be running the Social Security Numbers of your employees through either E-Verify or the Social Security Number Verification Service. [An aside:  neither program authorizes its use for that purpose, and the SSNVS handbook specifically prohibits third parties, i.e., someone other than the employer, from using it to take action that might be deemed adverse to the employee.]
This can create several issues for employers. First, an employer could have some liability to the employee if the employer knows that the SSN is being used for an improper purpose. Second, if the carrier makes the employer aware that the SSN was returned as mismatched or that the carrier has reason to believe the employee is not authorized to work, the employer must determine what steps it wishes to take to further verify employment eligibility. If it doesn't take any steps, it runs the risk of being considered "on notice" that a potentially unauthorized worker is in its employ.

Employers should consider periodically informing the carriers that any information provided is to be used for its authorized and intended purpose only. Taking it a step further, employers could also provide a statement to the carrier that the SSN is not to be used for any unauthorized purpose, including specifically any attempts to determine the work eligibility status of the employee.

In the FYI category--Tennessee's workers' compensation statutes provide that unauthorized workers are still eligible to receive certain benefits. The law places a limit on the amount of those benefits that can be awarded versus what would be available to an authorized employee. [See T.C.A. 50-6-241(e)(1)]

Tuesday, May 10, 2011

Need evidence for a Wage & Hour Lawsuit? There's an app for that.

The United States Department of Labor announced yesterday that it has developed an “app” for smartphones that is designed to help employees keep track of their hours worked and calculate their wages and overtime pay. This free app is available for download on the DOL’s webpage. According to Secretary of Labor Hilda Solis, “This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay."

This is a development that employers should be aware of and pay attention to. The DOL’s app is really a convenient way for employees to collect evidence to support a wage and hour complaint and/or lawsuit. In fact, the DOL has practically admitted this. In a news release, the DOL stated that “This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” In other words, the DOL would rely on employees’ records where the employer has not maintained accurate records of the hours an employee has worked. Even for those employees who are not as tech savvy, the DOL has developed a printable work hours calendar for employees to use to track rate of pay, work start and stop times, and arrival and departure times

It is easy to imagine a situation where an employee’s records using a smartphone app or paper calendar are different from the employer’s records, and create a conflict as to how much the employee is owed. To lessen the threat of a successful wage and hour lawsuit based on the employee’s independent records, some employers may choose to require employees sign time sheets and pay stubs to verify that the employer’s record of the employee’s hours and wages are accurate. In light of the DOL’s announcement, now is a good time for employers to ensure that they have properly classified employees as exempt or non-exempt, are paying employees properly for all time worked, and are maintaining accurate records related to employees pay.