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.

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

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)]

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.

When on the phone means on the clock

I remember the days before smartphones, when I could only access my e-mail remotely from a laptop. I yearned for one of those cool little phones that would let me immediately respond without the need for lugging around my laptop, opening a VPN connection and logging on. And now I have it--check that: I've had it for several years. And I find that I now yearn for those times when I can power down the cool little phone and disconnect from work. But that's about all I need to worry with as an exempt employee.

What about those employees who are non-exempt and have those cool little phones with remote e-mail access? They, too, may have the longing to disconnect and not do work. Employers should have that desire for the non-exempt employees as well. Otherwise, employers could be facing unpaid time claims (including overtime claims) for time spent by non-exempt employees checking their work e-mail accounts.

Even in situations where the smartphone is the non-exempt employee's personal phone and not company-issued, the employer can still have liability for time spent on the smartphone performing work-related tasks. If the employee uses it to do work on the company's behalf, that is compensable time under the Fair Labor Standards Act (that whole "suffer or permitted to work" thing).

So, what to do? Here are a couple of thoughts:

• check your e-mail use/electronic communications policy to ensure that you have advised employees that they have no expectation of privacy in their company e-mail accounts--regardless of how the accounts are accessed
• update your timekeeping policy, e-mail policy, etc. to prohibit unauthorized time worked after hours, and remind employees that any work which might result in overtime should be approved first
• most e-mail programs have a setting that allows you to schedule when particular messages will be delivered. Train your supervisors how to use that setting so that e-mails which are being sent to non-exempt employees are delivered during normal working hours
• prohibit employees (exempt and non-exempt alike) from having remote access to the e-mail accounts without prior permission (which gives you some control over who has the ability to check e-mail during off hours)
• remind non-exempt employees that they are to record ALL time worked, including those seemingly small, incremental periods during off hours when they are accessing e-mail remotely
• perform overtime/timekeeping audits periodically; this will also help you discover any patterns in e-mail usage that you can then use to better control remote access
• if you find an employee has violated your policies and established expectations, counsel the employee on the appropriate conduct.

If you haven't updated your electronic communications policy recently, or your timekeeping/overtime policy, now is a great time to do that. It provides you with a forum to remind employees of the company's expectations.

Timing IS everything

I love it when I'm scheduled to give a speech, and someone more famous than I (that doesn't take much, mind you) gives me fodder to present as an example.

This time, it's my speech on dealing with the borderline employee. One of the building blocks I recommend to my audience is the concept of time. More specifically, I encourage the audience to review the calendar before it metes out discipline or informs an employee of his/her termination from the job. It isn't wise to terminate close to a holiday or on an employee's birthday, as examples.

Enter The University of Tennessee Athletic Director Mike Hamilton.

Mr. Hamilton has experienced his share of gray-hair-making moments since he hired Lane Kiffin to be football coach in 2009. Most of those occurred on the football side of operations until men's basketball coach Bruce Pearl was caught in a lie to NCAA investigators during a 17-month investigation of the program.

The AD has done a respectable job of making appropriate comments concerning the future of the basketball program and its big personality coach in Pearl. That all changed on Wednesday, though. During a radio interview on a Knoxville station, Hamilton stated that he was unsure of Pearl's future with the program. This is the first departure from the stoic support received by Pearl since the NCAA investigation was revealed.

Search the words "Mike Hamilton Coach Pearl", and you'll be directed to a page-worth of articles concerning the "uncertainty" of Pearl's future, how it appears that the Vols' foes extend beyond their first-round tournament match-up with Michigan, that the "jury is out" on Pearl's job. . . you get the idea.

Timing really is everything. I can't help but scratch my head and wonder what motivated Mr. Hamilton to make those comments this close to the Vols' NCAA tournament appearance. Many sports analysts stated that the Vols needed to make a deep run in the tournament in order for UT's fans to be appeased (i.e., give Mr. Hamilton any shot at making the case for Pearl to keep his job, regardless of the velocity of sanctions that are forthcoming from the NCAA).

Prior to those comments, most would have thought that UT was more than fair to Pearl in extending him the grace it has thus far. Mr. Hamilton might have timed his comments well enough to now place the martyr crown on Pearl's head. And those who attended my presentation today know that doing that serves to take away power from the employer and give it to the borderline employee.

It will be interesting to see what unfolds from all of this. The possible gains from the timing of this statement are lost on this employment counselor, but that doesn't mean they don't exist. I just can't imagine what they are (save from someone already informing Mr. Hamilton that he has lost his job and he feels that he has nothing to lose). Mr. Hamilton has given the predictable, "My comments were misinterpreted" explanation for the internet wildfire that surrounds him. Maybe I'll send an invite to Mr. Hamilton next time I give the presentation. It's the least I owe him after he provided me with such fine material.

The line is blurry: personal vs. professional in social media

In case you missed our last post about the less-than-defined line between the business you and personal you in social media, take a gander at this article from Forbes about tweets which cost some tweeps their jobs.