Employment Law Updates

EMPLOYERS MUST USE NEW I-9 FORM

The federal government has released a new Employment Eligibility Verification Form (I-9), the mandatory form employers must complete for every new hire.  This form is used to verify an applicant’s identity and eligibility for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA).  For individuals hired after November 7, 2007, and for any re-verifications after that date, employers must use the new Form I-9. 

The new Form I-9 eliminates five of the ten “List A” documents that employers previously could rely on to establish both the applicant’s identity and his or her employment eligibility, but does not make any changes to the “List B” (identity) and “List C” (eligibility) documents.  The new form, which bears a revision date of June 5, 2007 (located in the lower right hand corner of the form) can be downloaded in English and in Spanish, and information on completing the form can be found on the U.S. Citizenship and Immigration Services website.

WHY SHOULD EVERY EMPLOYER HAVE AN ANTI-HARASSMENT POLICY?

Every football fan has heard it a thousand times: “The best defense is a good offense.”  But did you know the cliché applies equally well to the employment arena?  In 1998, the U.S. Supreme Court decided two landmark cases that provide an affirmative defense to employers for sexual harassment.  If the employer can show that it had an effective anti-harassment policy in place at the time of the alleged harassment, then the employer can take advantage of this defense so long as the reporting employee was not fired or subjected to an otherwise "tangible employment action."

Keep in mind that an anti-harassment policy should be in writing, and your employees must be aware of the policy and how complaints should be reported.  By being proactive and implementing an effective anti-harassment game plan, you will discourage inappropriate conduct and lessen your potential liability in an easy and cost-effective manner.

HAVE YOU AUDITED WHETHER YOUR EXEMPT EMPLOYEES ARE REALLY EXEMPT?

Both state and federal law require that most employees be paid at least the applicable minimum wage, as well as overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.  The only time an employee is legally exempt from overtime pay is when the employee fits within a specific exception defined by law.  The most common exemptions from the overtime laws are for “white collar” employees; executives, administrative managers, professionals, certain computer employees, and outside sales personnel. 

Careful consideration should be given to each employee before he or she is granted exempt status.  The risk of misclassifying an employee as exempt can easily and quickly become very expensive.  If the misclassified employee successfully challenges the classification or your organization is audited by a federal or state agency, you will be liable for all overtime wages that should have been paid over the previous two years, together with interest, possible penalties, and attorney fees. 

For additional information on classifying exempt employees, please contact us. You can also get more information on the Oregon Bureau of Labor and Industries website or the U.S. Department of Labor’s website.

BEWARE THE USE OF SOCIAL SECURITY NUMBERS IN EMPLOYMENT SETTINGS

Effective October 1, 2007, the Oregon Consumer Identity Theft Protection Act requires businesses to safeguard the personal information of any “resident of this state” or “consumer,” which in most cases will mean a business’s employees and customers.  In general, the Act protects information sufficient to permit identity theft against the employee or customer whose information was compromised, e.g., financial information and social security, driver’s license, and passport numbers.  A $1,000 fine is assessed for each violation.  To avoid such penalties, employers must abide by the three requirements imposed by the Act.

First, the Act requires employers to notify an employee or customer if personal information is disclosed for other than legitimate business reasons. 

Second, the Act prohibits employers from publicly posting or displaying an employee’s or customer’s social security number, and from printing that person’s social security number on any materials that are mailed to the person unless (i) requested by the employee or (ii) the information is part of the documentation of a transaction or service requested by the person.  Further the employer cannot print the employee’s social security number on any card required for the employee to access products or services provided by the employer. 

Finally, the Act requires employers to “develop, implement and maintain reasonable safeguards” to protect the security, confidentiality and integrity of employee and customer personal information, including its disposal.