Employment Law Updates

OFLA-FMLA VIOLATIONS TRIGGER LIABILITY FOR INDIVIDUAL MANAGERS

Most human resource professionals know how complicated it can be to administer family and medical leave.  However, many managers are not aware that they can be held personally liable for violations of the family and medical leave laws.  Recent court decisions in Ohio and Tennessee have followed the majority of other courts in holding that if a manager violates the Federal family and Medical Leave Act, that manager can be sued as an individual.  It is likely that Oregon courts would follow suit if presented with the issue, because the Oregon statute is modeled on the Federal Act.  Accordingly, human resource professionals should take steps to ensure that OFLA-FMLA decisions are made properly, and that their companies are in full compliance with the law.  For additional information on individual liability for OFLA-FMLA violations and what human resource professionals can do to reduce their risks, please consult with an attorney knowledgeable in employment law. 

NEW HOMELAND SECURITY I-9 REGULATION FACES COURT CHALLENGE

All employers are required to document the citizenship or immigration status of new employees by requiring those employees to complete a Form I-9 and provide certain documents (such as a U.S. passport or driver's license and social security card) within three days of the employee's commencement of employment.  Knowingly employing workers who are unauthorized to work because of their citizenship or immigration status can result in substantial fines, and even criminal penalties.  A new Department of Homeland Security regulation that was scheduled to go into effect on September 14, 2007 would have placed even more responsibility on employers, but implementation of that regulation has been stayed by the court, at least temporarily. 

The new regulation provides that if an employer receives written notice from the Social Security Administration that the combination of name and social security number submitted for the employee do not match agency records (called an Employer Correction Request, or "no-match letter"), that employer shall be deemed to be "knowingly employing workers who are unauthorized to work."  The regulation will also apply when an employer receives written notice from the Department of Homeland Security that the documents submitted by the employee in completing the Form I-9 do not match agency records (called a Notice of Suspect Documents).

Fortunately, the new regulation provides a safe harbor provision for employers who take "reasonable" steps to resolve the discrepancy after receiving a no-match letter or Notice of Suspect Documents.  Reasonable steps include:

1. Promptly checking the employer's records to determine whether the discrepancy was caused by a typographical or similar clerical error in the employer's records.  If an employer finds an error, the employer should correct its records and notify the relevant agency within 30 days of receiving the no-match letter;
2. Promptly asking the employee to confirm that the employer's records are correct. If they are not correct,the employer should correct the records and verify the corrected records with the relevant agency within 30 days of receiving the no-match letter.  Employers may verify a social security number by calling the Social Security Agency at 1-800-772-6270, weekdays from 7 a.m. to 7 p.m. EST; and
3. If the employer's records are correct, the employer should then ask the employee to follow up with the relevant agency.

If the employer cannot resolve the discrepancy, it must either terminate the employee or face the risk that the Department of Homeland Security will find that it violated federal law.  The employer generally has 90 days after receiving the no-match letter to either make sure that the discrepancy is resolved or terminate the employee.  If the employer and employee tried to resolve the discrepancy for the full 90-day period, they have an additional three days to complete a new Form I-9.

At the eleventh hour, labor and civil rights groups challenged the regulation as unfairly targeting legal workers, and also argued that the Department of Homeland Security has no authority to utilize the tax code to implement its immigration initiatives.  The court issued an order temporarily suspending implementation of the rule until that legal challenge is resolved, which could occur as soon as October, 2007.