U.S. Citizenship and Immigration Services

Posted by Justia AdminOn April 9, 2008In: Immigration

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Delaware Attorney Barry Willoughby Leads By Example

Posted by Molly DiBiancaOn April 9, 2008In: YCST

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Being a Better Leader

If you have an interest in Leadership and Managment skills, then you've probably tapped into the great resources offered by the Harvard Business Review. In the April edition of HBR, there is an article titled, "Be a Better Leader, Lead a Better Life." The article argues that a good work-life balance is an essential qualification for those who seek to be good leaders.

This concept probably doesn't come as a surprise to most managers. Being locked in an office all day and night will inevitably skew perception of the "real world." And, let's face it, the "real world" is where your staff lives. If you fail to prioritize your life outside of the office, it's easy to see how quickly a divide can develop between you and your reports.

And let's not overlook the obvious--if your work-life balance is in line, you're destined to be a happier person. Everyone likes happy people. And nobody likes a grouchy boss. If you have happiness outside of your work, people will want to work for you.

Really, it's true. Just ask attorney Barry M. Willoughby, Chair of the Emloyment Law Department at YCS&T, who is pictured above. The picture features Barry on a recent fishing business trip to Florida, where he managed to wrestle in a 25 lb. grouper. See how happy he looks? Trust me, his loyal team appreciates a good work-life balance in our leaders.

Another thing that should make you happy: During the month of April, the normally subscription-based Harvard Business and Harvard Business Review are both totally free.

Delaware PERB Executive Director Speaks Out

Posted by William W. BowserOn April 7, 2008In: Union and Labor Issues

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The Delaware Public Employment Relations Board (PERB) is in its twenty-fifth year of operation. It administers public labor relations in much the same way as the NLRB oversees the private sector. On January 1st, Deborah Murray-Sheppard became the PERB's new Executive Director. I recently had the opportunity to speak with her about PERB and the recent changes expanding PERB's responsibilities.Delaware PERB Logo

Q: What's new at the Public Employment Relations Board?

A: It certainly has been a time of change for PERB. First is the retirement on January 1 of my friend and mentor, Charlie Long, as Executive Director. He and I have worked as a team for 24 years. Fortunately, he has been working a couple of days a week to ease us through this transition.

In addition to a change at the top, PERB's responsibility has continued to expand. For example, interest arbitration has been expanded to include virtually all public employers. Also, all State employees now have the right to bargain over wages for the first time.

Q: Can you give us a general breakdown of PERB's workload?

A: PERB handled about 58 cases from April of last year to the present. Eight of those cases involved traditional unfair labor charges. About 29 cases involved the collective bargaining process, including three requests for binding interest arbitration and, 21 cases involved issues of representation.

Q: Binding arbitration has been one of the most important changes in public labor relations in many years. How's it been working?

A: Well, the answer to that probably depends on who you're asking. I can tell you that only a handful of requests actually have gone all the way to a hearing before an arbitrator. Most requests have been resolved through our pre-arbitration facilitation process. Of the three decisions issued by PERB, all three have been in favor of the employer.

Q: What cases are scheduled interest arbitration now?

A: We have only one right now. Certain employees at the Port of Wilmington are scheduled for an interest arbitration hearing in late May. In addition, the state troopers have completed mediation and are participating in our pre-arbitration facilitation process. Recently, two cases were settled by the parties before a hearing. The City of Wilmington was able to reach an agreement with its rank and file police officers and New Castle County was able to reach a tentative agreement with its blue collar workers.

Q: All State employees recently obtained the right to bargain over wages. How has that process been going?

A: We are still working our way through that process. Under the new law, PERB was required to place each state job into one of 12 statewide units. Unrepresented employees are now in a position of requesting that they be represented by a union for purpose of collective bargaining. We now have five such petitions pending. The petitions are in various stages of the process.

Q: What do you see on the horizon for PERB?

A: I think we'll continue to be very busy. Over 50% of the collective bargaining agreements under our jurisdiction have expired or are about to expire. The volume of collective bargaining going on and the tight economic climate suggests that our services will continue to be in demand.

The PERB's official website can be accessed here.

Monday Morning Water Cooler: The Lighter Side of the Cubicle

Posted by Molly DiBiancaOn April 7, 2008In: Just for Fun

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Well, Monday mornings aren't exactly the favorite part of the workweek, at least not for most of us. But they don't have to be that bad, really. Here's a little cubicle humor to start your week off on a positive note.


Happy April!! You've survived the first week of the month of April 2008. And, if you're as seasonally focused as most, this means that you are one week closer to Spring! But wait, there's more to love about April. This week, April 7-11, is "Explore Your Career Options Week"? (Last week was "Laugh at Work" week. I suppose this week's title means you probably weren't laughing.)

And the celebrations and merriment don't stop there.

~Today (7th) is No Housework Day. I'd like to nominate this one to get an entire month. A day just isn't enough.

~Wednesday (9th) is National Cherish An Antique Day. For the Generation Y'ers out there, No, this does not include the senior management team.

~Thursday (10th) is National Sibling Day, which I am happy to celebrate given I have the world's best sibling.

~But Friday (11th), for certain, is the best day of the week this time round. There are two, yes, that's right, two reasons to celebrate on Friday. First, Friday is Barbershop Quartet Day. And, second, Friday is also International "Louie Louie" Day.

With a barbershop quartet and at least one office karaoke version of "Louie Louie" in your future, how could you NOT be glad that it's Monday!


March Madness: No Need to Despair

Posted by Molly DiBiancaOn April 5, 2008In: Policies

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March Madness

That's right, March Madness is here. Again, it's the the time of the year eagerly anticipated by college basketball fans. The entire college basketball season packed into 63 action-packed games.

And what does all of this frenzied excitement have to do with employers? Lots.

$3.7 billion lost to March Madness basketball?

First, there's the cost. March Madness costs employers big bucks. It's estimated that the average American employee spends 13.5 minutes per day surfing the web for college basketball updates, video, and betting forums. I'm sure there are some who would say that estimate is fairly low. But, at even 13.5 minutes per day, 58.5 million college basketball fans times the average American hourly wage equals $1.7 billion, spread out over the 16 basketball tournament days.

That's right, $1.7 billion in 16 days.

Other Financial Costs
Lost productivity is obviously a monster-sized problem for employers. But that's not the only cost incurred during the tournament season. With games being broadcast both live and recorded on the internet, employees don't have to worry about the trouble of finding a television within viewing distance. Instead, they've got the whole world wide web of sports action at their fingertips. And, while productivity goes down, so does your network's speed. It doesn't take many employees watching live-streaming video to slow your system to a crawl.

Now, all of the employees who actually aren't watching the games can't do work, even if they wanted to.

Other Employer Considerations

Productivity issues require employers to make (or avoid) decisions about internet usage monitoring. But there are other issues, as well. For one, there's the issue of the office pool. Is gambling at work illegal? Does it put employers at risk legally? Well, it is unlikely that your workplace will be surrounded by a SWAT team in an ambush attack on your illicit gambling ring over an office basketball pool.

Yet, employers should decide what exactly their position actually is. If an employer allows staff to participate in a pool, the company cannot take any of the funds from the pool. The ante should be small, $5 or less. And the pool must be strictly voluntary. Persons who have a religious objection to gambling, for example, should not be made to feel "left out" of the comraderie just because they declined to toss their $5 into the pot.

And there is another, broader legal implication. Someone set up the pool. Someone is collecting money from participants for the pool. Someone is monitoring the status of the pool. And, likely, everyone is e-mailing about the pool. Also likely is that all of this hard work and dedication (towards non-work activities) is happening during working time.

This is where it really doesn't pay to be the nice guy, just this once. This is soliciting at work. Just like employees who sell their daughter's Girl Scout cookies is soliciting. Just like asking for donations to a charity is soliciting. Just like an employee who hands out catalogues and ordering forrms for a "jewelry party" (the modern-day incarnation of the Tupperware party) she is hosting soliciting.

And just like union salters who try to plant the seeds for a union campaign is soliciting.

The reason employers have non-solictitation policies is to avoid all of the above. By permitting employees to solicit at work, even just this one time, you risk liability later when the union representative wants to solicit your employees to go union.

But There is an Up Side

Okay, okay. I know that I've painted such a grim picture of such a fun time but have faith. Here's the upswing. Employers need to know about these risks and consciously decide how to handle each one. But, by "handling it," I don't necessarily mean firing everyone who participates in the pool or scans the web for the latest updates. There are more reasonable alternatives.

For example, get involved. Instead of being on the outside looking in trying to scope out the secret world of workplace spoots pools, companies can consider organizing the pools. Of course, this isn't a free ticket to ignore the rules of the game, as discussed above. But you could put a positive spin on it.

Why not have a portion of the winnings go to a local charity. Maybe one that the company has a history of supporting. Or maybe the pool winner(s) get to decide. Or even assign charitable organizations to each team and, when that team wins, the charity wins.

Another example might be sanctioned viewing. If you are inclined to restrict internet access to sports websites, announce that the restrictions are lifted and employees are free to view the games at certain designated times.

If your workplace has televisions in conference rooms or the cafeteria, make it a company-sponsored social time. Sporting events are as much "team-building" as any nature hike or rock-climbing experience. At Young Conaway, I'm proud to say that we practice what we preach. On Monday evening, before the game, our firm hosts a now annual Alumni event. All of the former attorneys who have gone on to don a black robe, opened their own practice, or went off to any other adventure, are welcomed back to talk sports and law, and eveything in between, and, while they're at it, to catch up with former colleagues. We have a tremendous turn-out for what has become a really great event.

So, the moral of the story is, make a decision, communicate the decision, and, whenever possible, include comraderie in the solution. It's a win-win all around.

Some thoughts from others in the know:

The Baltimore Sun discusses the upside to March Madness and how employers can utilize the basketball season to bring employees together. See the full article here.

The HR Capitalist has some quick-witted insight on the unavoidability of March Madness at http://www.typepad.com/t/trackback/817654/27180064.

The N.Y. Times has an informative Q & A on the office pool here, which Representing Management discusses with a legal focus here.

The Beazley Source tackles the cost of March Madness to productivity and the bottom line here. CNN's Money page does the same here.

Bad Boys, Bad Boys, Whatcha' Gonna Do . . . When They Work for You?

Posted by Molly DiBiancaOn April 4, 2008In: Off-Duty Conduct

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Our friends at H.R. Hero were nice enough to select one of my articles for HR Line, their national e-zine. The e-zine is great . . . except that you can't see it without a subscription. Don't worry, I'm posting a copy of the original article below.

Bad Boys, Bad Boys: Whatcha’ Gonna’ Do When They Work for You?

Every business has an image. Corporate branding is no small thing. Corporations spend lots of money to market to the right audience and promote their products and services with the perfect image. So what happens when corporate image is overshadowed by a news making employee? Employers are faced with tough choices when the off-time antics of an employee results in bad publicity.

Anchorwoman Turns Anger Woman

In December, popular Philadelphia anchorwoman, Alycia Lane, was arrested in New York City and charged with assault. The charges stemmed from an incident where Lane is accused of hitting a female police officer and calling her a homophobic slur. Lane pleaded not guilty to the charges and maintains her innocence. But her employer, a CBS subsidiary, is not in the mood for apologies, it seems. The station terminated Lane’s six-figure contract on January 7, 2008.

This is not the first time Lane has been featured in the gossip columns for her off-the-air conduct. She even “got real” on Dr. Phil Show, after her first marriage ended to discuss the heartache of divorce. And she made news in August after e-mailing pictures of herself in a bikini to NFL Network anchorman Rich Eisen. The e-mail was intercepted by Eisen’s wife.

Exit Lane: When the Newscaster Becomes the News

Lane’s contract likely included a “morals clause.” These provisions are common employment contracts of TV and radio news personalities, sports figures, and other celebrity types. Even Babe Ruth’s contract contained a good-behavior clause. They are standard issue in endorsement contracts.

But famous faces aren’t the only ones bound by this type of provision. Senior-level executives and corporate officers can expect them as standard. And some provisions include powerful enforcement tools. Executives can lose their deferred stock options if they violate the terms of their agreement.

These provisions provide for discretionary termination of an employee whose behavior conflicts with the company’s corporate image. They vary widely in their definition of “bad behavior.” In some contracts, the clause is not triggered until a criminal conviction. In others, the employer has total discretion to determine what constitutes “bad” behavior and what they want to do about it.

Don’t Judge Me!

So do these provisions hold water in the legal arena? Almost always, the answer is “yes.” Certain states have laws that protect employees from termination or other adverse employment action for activities taken during non-working time.

New York and California have the broadest protections for employees. Employers cannot make decisions based on the employee’s “lifestyle,” which includes just about everything they do off the clock. Some states have “Smokers’ Rights” statutes, which prohibit employers from refusing to hire smokers.

But Delaware has no such laws. So long as your decisions aren’t based on protected status, such as race, religion, gender, and age, you can be the judge of what constitutes “bad behavior” severe enough to warrant termination of an employee. Your company’s image will likely dictate the limits of what is “acceptable” employee conduct.

It’s a pretty safe bet, though, that assaulting a law-enforcement officer probably won’t go over so well with corporate management.

H-1B Visa Applicants Catch a 5-Day Break

Posted by Michael P. StaffordOn April 4, 2008In: Immigration

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The United States Citizenship and Immigration Services (USCIS) announced yesterday that all H-1B temporary worker petitions filed between April 1, 2008 and April 7, 2008 "will be subject to a random selection process." Of course, petitions that are not selected and approved through this process will be returned, along with the accompanying filing fees.

USCIS only began accepting H-1B petitions on April 1, 2008 for new employment in fiscal year 2009, which begins on October 1, 2008. The announcement of the random selection process means that employers who were not able to submit their H-1B petition by April 1st still have a chance to secure employment authorization, provided the petitions are submitted by April 7.

It's important to remember that not all H-1B petitions are subject the visa cap. For example, petitions renewing H-1B status, or "porting" a worker currently on an H-1B from one employer to another are, in most instances, not subject to the cap. However, the H-1B visa cap does have a tremendous impact on your ability as an employer to hire foreign students or persons presently in foreign countries for employment in the united States. As such, it should be considered in any recruitment conducted by your organization.

Blog Worthy of Note: Workplace Violence News

Posted by Molly DiBiancaOn April 2, 2008In: Workplace Violence

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I came upon a great blog today worthy of sharing. The bloggers at Workplace Violence News are posting like crazy and have a ton of substantive content. They also have a list of recommended reading and links to other helpful resources.

You can jump to the website from this link.

April 29: Annual Employment Law Seminar

Posted by Molly DiBiancaOn April 1, 2008In: Seminars, Past

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Delaware employers can mark their calendars for April 29, 2009. This is the date of Young Conaway's 2009 Annual Employment Law Seminar.   Here's a brief run-down on the essentials of the event--more details will follow as we get closer to April.  ycst sq.jpeg


Attendees include public and private sector employers, represented by Human Resource professionals, small-business owners, senior executives, and in-house counsel.

The attorneys from Young Conaway's Employment Law Department will be speaking throughout the day.  This year, we are very pleased that Administrator Julie Klein Cutler and Trina Gumbs, of the Delaware Department of Labor's Office of Anti-Discrimination, will be our keynote speakers.  There are no two people in the State administration who are more familiar with the nuances of the process involved in the filing of a Charge of Discrimination. 


One thing that will not be changing this year is the location of the event.  For the second year, the seminar will be held at the Chase Riverfront Center in Wilmington, Delaware.  We moved the event to the Riverfront last year due to the expanding number of participants.  The convenient location, accessible parking, and well-equipped facility earned the spot a return visit. 


This year we'll be conducting the seminar for a full day instead of the half-day seminar we've done in previous years.  The program's expansion was made in response to the comments and evaluations we received from attendees at last year's conference.  The seminar will be held on April 29, 2009, from 9 a.m. to 4:30 p.m.


The topics will be announced and registration will open soon.  Be sure to watch the blog for additional updates and registration information. 

DOL Offers Compliance Checklist for Wellness Programs

Posted by Molly DiBiancaOn April 1, 2008In: Internet Resources, Wellness, Health, and Safety

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Are Healthy Employees Productive Employees?

Last week I posted about a new survey on the lack of commitment by employees to health and wellness programs sponsored by their employers. For those of you who were not deterred by that news, here's a[nother] helpful (and free) online tool from the Department of Labor (DOL).

In February, the DOL issued its Field Assistance Bulletin 2008-02, which is designed to help employers who are attempting to establish a Wellness Program while remaining compliant with HIPPA regulations.

The Wellness Program Analysis can be found here.

Do You Need the Checklist?

In short, the answer is "yes" if you are an employer with any kind of health-promotion or disease prevention programs. Also known as "Wellness Programs," these health-focused initiatives became popular early in the decade. Certainly you've heard of these programs, even if your workplace hasn't yet adopted one.

Wellness programs come in every shape and size. Some of the more benign programs promote cholesterol screenings or even advocate flue shots for employees. Others promote an all-around "healthy lifestyle" by giving employees financial rewards for regular attendance at a fitness club. And, as you may have read in some of my previous posts, smoking is also a very popular target of wellness programs.

So why the need for a government-agency-sponsored "checklist?" As with just about everything in the law, we lawyers just can't hardly stand to let anything be simple. Employers that utilize "wellness programs," as defined by law, must follow certain practices to avoid violating the anti-discrimination provision of the Health Insurance Portability & Accountability Act (HIPAA). (Be honest, did you even know there was such a thing as an anti-discrimination provision in the HIPAA statute? If you said "no," you wouldn't be alone.)

Wellness programs that are subject to the HIPAA regulations must meet either a "benign discrimination" exception or offer a reasonable "alternative standard" in order to be in compliance with the law. Which exception will depend on whether your program is considered a "standard-based" or "participation-based" program.

Standard-Based vs. Participation-Based Programs

Standard-based programs require participating employees to meet the stated objective in order to receive the offered reward. So, for an employee to successfully complete a cholesterol-reduction program, his cholesterol must actually be reduced.

Participation-based programs offer a reward to employees based on their participation, as opposed to their success. The reward cannot be conditioned on achievement of a specific health-related outcome. So, for a smoking-cessation program, employees can receive the reward so long as they complete the program. Whether or not the employee actually quits the habit does not effect their eligibility for the reward.

Discrimination In a Standard-Based Wellness Program

To comply with HIPAA, a standard-based program must satisfy five requirements:

1. The reward offered under the program must be limited to 20% of the applicable cost of coverage.

2. The program must be reasonably designed to promote health or prevent disease.

3. Individuals must be eligible to qualify to participate in the program at least once per year.

4. The reward must be available to all similarly-situated individuals.

5. The wellness program must have a reasonable alternative standard and disclose the alternative standard in all program materials that describe the program.

And what exactly is the "reasonable alternative standard" identified in the fifth prong?

For standard-based wellness programs to avoid a HIPAA violation, it must offer an "alternative standard." This means that an employee must be offered a reasonable alternative to the stated objective and still be able to achieve the reward. In the cholesterol-screening example, the objective is the attainment of a certain cholesterol target. An alternative standard would be nutrition counseling sessions. The standard must be made available to those for whom it is (1) unreasonably difficult due to a medication condition; or (2) medically inadvisable to satisfy the otherwise applicable standard.

A Little "E-Law" Humor for April Fool's Day

Posted by Molly DiBiancaOn April 1, 2008In: Just for Fun

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Yes, lawyers really do have a sense of humor.
Go ahead, have a laugh, it's good for you.

E-card courtesy of someecards.com

Are Today's Wellness Programs Running Out of Steam?

Posted by Molly DiBiancaOn March 31, 2008In: Wellness, Health, and Safety

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Today's headline from Fox news says, "Despite Perceived Effectiveness, Most Employees Who Participate in Wellness Programs Do Not Stay Committed.". The survey, conducted by Guardian Life Insurance Company North America, reports the following statistic:

Nearly half of employees who have participated in wellness programs in the past three years admit that their commitment trails off after just a few years

Wellness programs have been all the rage for the past several years. Employers have been advocating a healthy lifestyle for their workforces by implementing a whole host of rewards programs. Employees are encouraged to get healthy by giving up tobacco, keeping their cholesterol in check, exercise, and eat right.

And, how, pray tell, do employers make this healthy magic happen? With a wave of the magic wand called "cash," of course! Employees who participate in their employer's wellness program are often rewarded with cash prizes, reduced health insurance premiums, or, maybe, just the satisfaction of a healthier lifestyle.

And what's in it for employers? For one, the hope of healthy employees who cost less in insurance premiums. You know the saying, "an ounce of prevention," . . .. Some subscribe to the theory that healthier employees are more productive employees who make more money for their employers and cost their employers less. Go figure!!

Treadmill-Desk In One
Why whistle while you work when you can walk? Another invention for the healthy-office initiative.


So why, according to the survey, aren't employees sticking with it? Could it be that money really doesn't motivate? Could it be that a healthy lifestyle requires more effort than the average American worker is willing to give it?

The Safe-Harbor Rule for No-Match Letters: Part 3 of 3

Posted by Teresa A. CheekOn March 31, 2008In: Hiring

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This is the third in a series of posts about the new Safe-Harbor rule issued by the Department of Homeland Security. For the 1st and 2nd posts in the series, go here and here.

What’s An I-9 Form?
The I-9 form is used to enforce the part of IRCA that prohibits employment of non-work-authorized aliens. All U.S. citizens, all lawful permanent resident aliens, all refugees and all asylees are allowed to work in the U.S. by virtue of their status. There are also some other categories of immigrants who are legally permitted to work here. All employers are required to prepare an I-9 form for each new employee to show that the employer has examined documents that demonstrate that the employee is legally authorized to work in the U.S. Employers are supposed to accept the documents only if they appear to be genuine (not counterfeit) and to relate to the person who provided them. Most U.S. citizens meet the document requirement by showing a driver’s license and a social security number card, but on the back of the I-9 form there are lists of other documents that can be used to prove identification and authorization to work.

Back To The Safe Harbor Rule
Under the new rule, if the employee has not provided corrected SSN information by the 90th day and the employee had relied on an SSN card as proof of work authorization, the employee must provide some other evidence of work authorization. The employee may not use documents that include the disputed SSN. The employee may not rely on an application for replacement work authorization documents, either. The employee also may not use non-photo identification.

What If The Employee Can’t Provide Acceptable Documents?
The employer has to either fire the employee or put itself at risk of prosecution for knowingly employing illegal aliens.

Is This Rule In Effect Now?
The rule was supposed to go into effect in September, but the AFL-CIO, the ACLU, the National Immigration Law Center and others filed a lawsuit [(AFL-CIO, et al. v. Chertoff, et al. (N.D. Cal. Case No. 07-CV-4472 CRB)] in the U.S. District Court of the Northern District of California to prevent the government from enforcing the rule. On August 31, 2007, the court issued a temporary restraining order preventing DHS and the SSA from implementing the rule. The SSA had planned to send about 140,000 no-match letters containing a DHS insert that would affect about 8 million workers to employers. The order stopped the SSA from sending those letters, so currently there are no pending no-match letters for employers to deal with.

What Is The Current Status Of The Regulations?
Implementation is on hold pending new rulemaking. DHS has just published a “supplemental proposed rule” in which it addresses problems the court identified. One problem was that DHS had stated that employers that complied with the rule would not get into trouble for citizenship status discrimination, even though OSC, not DHS, is the agency charged with enforcing IRCA’s citizenship status discrimination provisions. Another issue was DHS’s failure to explain and justify the change from its prior position on what social security number mismatches imply. Finally, DHS had failed to make a “regulatory flexibility analysis.”

DHS has not changed any of the provisions of the original rule. After the notice of the “supplemental proposed rule” is published in the Federal Register, there will be a 60-day period for the public to submit comments, and then DHS will review the comments, consider revising the rule, and then issue a final rule. It seems likely that the final rule will be the same as the rule published in August 2007.

Will The Safe Harbor Rule Be Mandatory?
DHS says it will be voluntary, but the court disagreed, noting that employers that receive a no-match letter must follow the rules to avoid being accused of knowingly employing illegal immigrants. At least employers who follow the rule will not have to worry about being accused of discrimination -- the OSC has just issued a statement assuring employers that if they follow the rule in a careful, uniform manner, it will not find reasonable cause to believe that they have terminated employees because of their citizenship status. You can read the entire OSC statement here.

Bottom Line
This rule may provide some temporary relief to employers caught between a rock and a hard place trying to comply with competing laws, but I predict that it will ultimately result in a decrease in counterfeit SSN cards with made-up SSNs and an increase counterfeit SSN cards using stolen identities to avoid getting caught up in the no-match net. The government currently has no useful mechanisms in place to deal with identity theft that I know of but will end up having to create them. I see universal fingerprints or retinal scans on the horizon.

Getting the Jump on No-Match Letters and Suspicious Document Notices

Posted by Teresa A. CheekOn March 31, 2008In: Hiring

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Last week I posted a couple of items about the Department of Homeland Security’s (DHS) “Safe-Harbor Rule,” which gives employers a method for avoiding prosecution for intentionally employing undocumented workers who have been listed in “no-match letters.” As you know if you read those items, the latest batch of “no-match letters” from the Social Security Administration (SSA) is on hold for an indefinite period. In the meantime, if you have received a no-match letter in the past, or suspect that you might be getting one in the future, is there anything you can do now to minimize future problems?

The answer to that question is yes. Employers now have two methods for finding out the extent of their no-match problem and of weeding out undocumented workers. One is the SSA’s Social Security Number Verification System (SSNVS), and the other is DHS’s “E-Verify” program. Both are free web-based programs.

The SSA program simply looks for mismatches between its records and your, the employer’s, records, and can be used for your entire workforce at any time. If you find a mismatch between your records and the SSA’s records as a result of using the SSNVS, the SSA tells you to check with the employee to find out whether you have the correct information in your records, and to resubmit the inquiry if you find an error. If that doesn’t end the problem, the SSNVS Handbook gives the following caution:


• A mismatch is not a basis, in and of itself, for you to take any adverse action against an employee, such as laying off, suspending, firing or discriminating.

• Company policy should be applied consistently to all workers.

• Any employer that uses the failure of the information to match SSA records to take inappropriate adverse action against a worker may violate State or Federal law.

• The information you receive from SSNVS does not make any statement regarding a worker's immigration status.

What the SSA program really does, then, is give you an opportunity to reduce the number of clerical errors in your payroll database. It also will give you an idea of whether you might be of interest to DHS, since DHS is now using SSN mismatches as a method for identifying employers with a high number of undocumented workers. If you find out that you have at least 10 unresolved mismatches and those mismatches constitute at least 0.5% of your workforce, you should take additional steps now to avoid possible future liability. At least one of those steps should be signing up for the DHS E-Verify program.

E-Verify is a free Web-based system that electronically verifies the employment eligibility of newly hired employees, and can be used for new hires only. To use E-Verify, first the employer must register as a participant and sign a “Memorandum of Understanding” (MOU) that will outline the responsibilities of the employer, the SSA and DHS. Your employees who administer the program will be trained in how to use it.

E-Verify works by allowing you to electronically submit employee information taken from the Form I-9. That information is then compared to the more than 425 million records in SSA's database and the more than 60 million records in DHS immigration databases. Results are returned in seconds.

According DHS, E-Verify is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. They claim that it will virtually eliminate Social Security mismatch letters, improves the accuracy of wage and tax reporting, protect jobs for authorized U.S. workers, and help U.S. employers maintain a legal workforce.

Once you are registered for E-Verify, you start the process after an individual accepts an offer of employment and after you and the employee complete the Form I-9. Under the terms of the MOU, the employer must initiate the query no later than the end of three business days after the new hire's actual start date. If there is no problem, the confirmation should come through in seconds, according to the DHS/SSA website. If there is a tentative “nonconfirmation,” the employer prints out the tentative nonconfirmation notice generated by the E-Verify program and gives a copy to the employee. The employer also checks its input to make sure it did not make an error in submitting information to the system.

The employee decides whether to contest the tentative nonconfirmation and tells the employer his or her decision. If the employee decides not to contest the tentative nonconfirmation, the employer treats the employee as non-work-authorized and terminates employment.

If the employee decides to contest the nonconfirmation, the employer gives the employee a referral letter and tells the employee to visit the local SSA office, if the nonconfirmation was from the SSA, or to call the DHS toll-free hotline, if the nonconfirmation was from the DHS or when the employer finds a non-match between a non-citizen and a document generated by the E-Verify system for that employee. The employee has to follow up with SSA or DHS within 8 federal government business days. On the tenth business day, the employer queries the system to find out whether the SSA or DHS have issued a confirmation or a final nonconfirmation. If there is a final nonconfirmation, the employee should be terminated.

An employee should not face any adverse employment consequences based upon an employer's use of E-Verify unless a query results in a final non-confirmation. The biggest downside of the E-Verify program is the lengthy list of responsibilities (15 items) that the employer must agree to take on. You can get more information about E-Verify on the DHS website here.

University of Hawaii Sued for Sexual-Orientation Discrimination

Posted by Molly DiBiancaOn March 30, 2008In: Family Responsibilities (FRD), Sexual Orientation

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Earlier this month, USA Today reported that a University of Hawaii student had filed suit against the public university for housing dicrimination. He alleged that, although he and his partner had been granted permission previously to live in the university-subsidized family housing, that permission had been revoked because the state did not recognize same-sex marriage. The couple, therefore, did not meet the criteria necessary to qualify for family housing.

Laws that protect againt housing discrimination and employment discrimination are often passed in the same bill. But Hawaii is not one of the states that has set up its laws this way. Hawaii state law prohibits discrimination in employment decisions based on sexual orientation. It does not have a parallel law for housing discrimination, though.

As you may know, Delaware has neither. But it has not been for lack of trying. Senate Bill #141 has been proposed and passed in the State House of Representatives for several years in a row. It has been tabled each time and housed in the drawer of a legislator until it is proposed again the following year. The bill would amend the titles of the Delaware Code that deal with Employment Discrimination, Public Housing and Public Works, Equal Accommodations, and Insurance. In each of those areas, it is unlawful to use race, religion, national origin, gender, age, or other protected characteristics as the basis for granting or denying access to, for example, public housing or government contracts.

Currently, 17 states and the District of Columbia include sexual orientation in their list of protected classes for the purposes of employment discrimination. In Delaware and Pennsylvania, public employers may not consider sexual orientation but there is no equivalent law for private employers. And neither Delaware nor Pennsylvania is one of the 15 states (including D.C.) that prohibit sexual orientation in its housing laws. Both Maryland and New Jersey are included among the states that prohibit consideration of sexual orientation both in housing and employment.