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Ask the Experts: I-9, W-9, E-Verify and more!

erick — Wed, 29 Jul 2015 13:41:08 +0000

These questions and answers are excerpts from our webinar on 6/9/15, “Avoid ICE knocking on Your Door: I-9 E-Verify and Immigration Compliance,” which was presented by Julie Pace of the Cavanagh Law Firm. You can watch the entire webinar these questions and answers came from HERE.

Q: “If we complete an audit and realize that we have blank spots that the employee did not complete with an “n/a,” should we leave it or go back to the employee to write the n/a in the box?”

Julie: “Avoid blank spaces and put a dash to show it was not skipped. I would avoid ‘N/A.’ Use a dash instead. A dash does not disrupt the scans and it shows you thought about it, it wasn’t available, and that’s how you thought it out.”

Q: “If someone puts in their birth date into the current date area and crosses it out, should they initial or just fill out a new form?”

Julie: “Let’s look at section 1 of the I-9 Form. Let’s say the person wrote their birth date wrong or wrote it backwards. You have to do it in a certain format of (mm/dd/yyyy). Let’s say you’re proofing it and they did it backwards. They can actually strike through with a straight line, you can have the employee do that. So, a single strike through so it’s legible the agents can read it and they don’t see anything covered up. Then write the new date below it and then date it, and initial it. And if you correct I-9’s after the person has worked there, that would be something to have the employee sign, initial, and date it in that same little box to show when they altered it. If it’s a new hire, you just start over – you can shred the first one and move on from it.”

Q: “Could you please explain why it is important for a new employee to complete a W-9 along with a W-4?”

Julie: “Employers cannot specify which documents employees use. Employees may choose not to show you a Social Security card. As an employer, we want to have something to verify what we’re relying on for their Social Security number. The W-9 really helps to show good faith in immigration compliance and it also helps you with the IRS. If you end up paying someone who’s not in our workforce, and it turns out that is not their Social Security number, it goes into the unapplied earnings, then the IRS can target companies for penalties over that financially. They can’t really do that if you have a W-9 signed. It’s a very easy form to get signed with the W-4, right at the time you’re hiring people and they just sign it as an individual. They cannot put a Taxpayer ID number on there because the IRS does give people who are undocumented a (TIN) so they can file their taxes, but they can’t do that to work for you, they must put their Social Security Number.”

Q: “If they are presenting a list A document for the I-9, why would we require a W-9?”

Julie: “Because the I-9 Form is solely for the federal government and it’s only their form. It cannot be given to contractors, or companies that say, ‘Show me your I-9 to do business with me,’ or to state law enforcement, state employment agencies, who all make these mistakes.

The W-9 is designed for the IRS, for law enforcement inquiries, and also we use it with ICE that we are showing good faith and that we are paying underthe correct Social Security Number, since Social Security numbers are the most abused out there. And we do not necessarily want a copy of the Social Security card, because they’re counterfeited enough to where an agent would say, ‘Hey, you should have known this was counterfeited. Now that you have a photocopy of that document, we’re going to target you for it.’ The W-9 is a very effective tool for when a police officer comes by and says, ‘Hey, I need some documents to show for identity theft.’ Your response can be, ‘I can’t give you an I-9 form, but I can give you a W-9 and a W-4 that were signed, and we’ll move on.’ ”

Q: “Can't you use the Social Security Database check to help with verification?”

Julie: “I would not recommend that. That used to be an old program, the SSNDS, it’s kind of fraught with problems, first of all. The government views it that the Social Security card and number is not an immigration document. So, if it comes back that it doesn’t match, there’s 17.1% of people who don’t match their name and social; they’re still perfectly legal to work. The problem is you get into a bind where you are getting information from the Social Security database that says it doesn’t match and then what do you do with it? Now you’re starting to go down that path of constructive knowledge by ICE that says, ok, you took the extra step to check that database and now that you’ve checked it, now we think you should have know or done something further about it. And yet, you’re not allowed to fire them and theirs case law that says if you do, you can be targeted for back wages and damages because it is not an immigration database.”

Q: “What do we do with the W-9 besides just having it?”

Julie: “Just put it in your regular personnel files. You’re not allowed to put I-9 forms with your personnel files, but you’re absolutely allowed to put W-9’s with your personnel files, so that’s the easiest way.”

Q: “What if my state doesn’t have a driver’s license issuing authority?”

Julie: “In some states, driver’s licenses don’t have an issuing authority, and you just have to look at the card and it will show. For example, the state of Arizona doesn’t have one, but if you look at the card and it says Arizona, you can put ‘State of Arizona’ or ‘AZ DL’ and that’s fine.”

Q: “Is it ok for the employer to type up the I-9 and have the employee review and sign or MUST the employee fill the form out?”

Julie: “We used to do that in the old days, but I wouldn’t today. I know it’s faster, but if you’re in a high risk industry, I wouldn’t do it. I’d let the employee do it in their own handwriting, especially if you’re in a high risk industry. Until we get a legal status program through congress, and get some immigration reform done, police officers and ICE agents may target the HR person and say the manager was helping them in making up the information, so they could get the worker. We want it in their own handwriting so they can’t target you.”

Q: “Is it okay to have the new hire fill out the I-9 prior to the first scheduled day of work?”

Julie: “Yes, you may do that. That helps a lot, because they can fill it out, the date they start is later, and you’re getting all of your ducks in a row ahead of time. So no problem about that, a lot of people do that, good choice.”

Q: “Should you have employees fill out new I-9s periodically or should they only be completed at time of hire?”

Julie: “You’re prohibited, generally from having I-9’s completed after someone starts, unless you’re doing an audit and you see a mistake, and you realize something needs to be done. It’s supposed to be done once at the time of hire and not looked at, unless you’re doing an internal audit.”

Q: “We have seasonal employees that only work in the summer. Do I need to re-verify if they are classified as seasonal employees?”

Julie: “If someone’s rehired within three years after the original I-9 is completed: employers may complete Section 3 of the original Form I-9 after verifying that Section 1 information is still accurate. If it’s more than three years after the I-9, you just complete a new I-9. If you previously completed section 3, you can complete a new I-9. And some people just do I-9’s everytime an employee comes in, so keep that in mind as well.”

Q: “Can you fire someone if they give you false documents?”

Julie: “Sure, if you find out that someone is not legal to work, you absolutely can let them go. You just say, ‘We do things by the book, we’re immigration compliant, we’re sorry, that’s the way it is and we’re going to have to separate your employment.’ ”

Q: “If you’ve always retained photocopies of documents, should you get rid of those?”

Julie: “If you’re not under a government audit now, you can audit your I-9’s get them up to speed and follow your retention rules and do that as of today.”

Q: “Do you have to sign up for E-verify?”

Julie: “In some states, we do a lot of federal government contract work. So for Davis-Bacon and contractors, you do have to sign up for E-verify for federal contract work. So, there’s some states where it’s required and some states, it’s voluntary.

You can watch the entire webinar these questions and answers came from HERE. Find out more about our Employment Verification Guide, authored by Julie Pace, HERE. It focuses in depth on I-9, E-Verify and Immigration compliance.

Termination Series: Communicating the reason for discharge

lisahein — Tue, 23 Jun 2015 13:31:10 +0000

Do employers need to provide a reason to a discharged employee?

Federal law does not require employers to provide terminated employees with a written explanation for their discharge. However, many states have litigation in place that calls for an employer to provide documentation outlining the reason for termination. This is a called a service letter, and some state laws decree that you give this to the employee immediately upon termination while others only require a service letter to be issued upon an employee’s request.

Be honest and succinct

Regardless of state law, it is usually a good idea to let an employee know why they are being terminated and to keep a record of this information. When conducting a termination, you should honestly state the reason for discharge. The explanation should be factual and brief. In some cases, an employer’s failure to state the true reason for the termination or stating reasons inconsistently has been considered evidence of bad faith or discrimination.

Note:

Don’t try to avoid difficult discharge decisions by classifying the discharge as a “layoff.” Calling a discharge a layoff can be dangerous if a true layoff did not occur as the error may be enough for a reasonable juror to determine the employer’s reason is a pretext for discrimination.

Steer clear of defamation

Avoid giving defamatory or derogatory reasons for termination. This means you should be sure to not communicate a statement to the employee that may injure his or her reputation, especially if the statement may not be factual. A defamation claim typically is comprised of the following:

a false and defamatory statement (a statement that injures the reputation or community standing of another person or discourages others from associating with that person)
concerning the plaintiff
that is “published” or communicated to a third party
with fault amounting to at least negligence (some states have not required a showing of fault or negligence if the plaintiff is a private person and the defendant is not a member of the media)
and
with proof of damages or a presumption of damages to the plaintiff as a matter of law.

An ex-employee may bring a defamation claim if an employer gives information to prospective employers without a release. However, employers should also be aware that a subsequent employer could possibly sue the former employer for negligent referral if the employee commits the same type of wrongful conduct she or he committed at the previous job. Careful consideration should be given to any communication regarding the reason for the termination.

If the reason for discharge is documented, the documented reason must be the same reason that was stated to the discharged employee in the event that the employee files for wrongful termination. In the event that the termination involves a complicated matter, you may wish to seek legal counsel before drafting a separation notice.

Looking for more details about the termination process?

Check out our Hiring, Firing and Discipline for Employers guide, authored by the expert attorneys at FordHarrison. You can also check out the requirements specific to where you live by visiting our homepage here and selecting the options for your state.

Immigration: new authorization to work

shannon — Tue, 25 Nov 2014 17:11:29 +0000

Five Million Undocumented Workers May Be Eligible for Work Authorization in May 2015 Based on New Executive Order

By: Julie Pace – The Cavanagh Law Firm, PA

On Thursday, November 20, 2014, President Obama issued an Executive Order that will create the opportunity for an estimated 5 million undocumented individuals to obtain work authorization and temporarily stay in the U.S. without fear of deportation for three years, which can be renewed for additional three year periods. Similar to the Deferred Action for Childhood Arrivals (DACA) program, individuals under the new Executive Order will not obtain citizenship or legal permanent resident status, but if they meet the program’s requirement they can obtain temporary employment authorization and be safe from deportation.

The Executive Order has a three prong approach consisting of:

a crackdown on border security
a focus on deporting felons and not families

accountability of immigrants already unlawfully present in the U.S.

The first prong of the Executive Order calls for an increase in border security to prevent individuals from entering the U.S. through improper channels and to decrease the flow of undocumented immigrants across the borders. The President’s actions will also centralize border security command-and-control to help effectuate the increased border enforcement.

The second prong of the Executive Order sets a focus on deporting “felons, not families,” as the President stated in his speech. This builds on the 2012 directive from former Secretary of Homeland Security, Janet Napolitano, to Immigration and Customs Enforcement agents focus resources on detaining and deporting only those individuals who presented a danger or threat to national security or public safety. The President has ordered ICE to place those suspected of terrorism, violent criminals, gang members, and individuals who have recently and unlawfully crossed the border into the U.S. at the top of the deportation priority list.

The third prong of the Executive Order creates the Deferred Action for Parental Accountability (DAPA) program, which allows certain individuals who do not possess legal status to obtain work authorization and protection from deportation, similar to DACA. This opportunity is available to immigrants who meet the following requirements:

must have lived continuously in the U.S. since January 1, 2010
must be the parent of a U.S. citizen or Lawful Permanent Resident (does not cover parents of DACA recipients) as of November 20, 2014
must register and pass a criminal and national security background check
and
must begin paying taxes.

The program is expected to be available beginning approximately May 20, 2015.

The President also announced that the DACA program will be expanded. The original program was limited to individuals under the age of 31 who had arrived in the U.S. prior to June 15, 2007. The expanded program will cover individuals who arrived in the U.S. before January 1, 2010, and removes the cap on maximum age. The remaining requirements, such as arriving in the U.S. before the age of 16 and attending or having attended a U.S. school remain. These changes make an estimated 270,000 more people eligible for DACA. President Obama also announced that DACA relief will be granted for three years (renewable), rather than the two years granted in the original program. These changes will be made by approximately the end of February 2015.

In addition to the three main components of the President’s Executive Order, the President announced changes to visa programs that provide work authorization for high-skilled workers awaiting Lawful Permanent Resident status and their spouses. Under the current scheme, employees with approved Lawful Permanent Resident applications may wait many years for their visa to become available. The Department of Homeland Security (DHS) plans to make regulatory changes to allow these workers to move or change jobs more easily. DHS is also finalizing new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved Lawful Permanent Resident application. DHS also plans to provide additional immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S.

Many companies may see a dramatic increase in the amount of labor force ready, available, and eager to work. Additionally, employers may be approached by current employees who had obtained work initially with falsified documents seeking to update their identification and work authorization information because they have received lawful work authorization. The information provided to complete the new I-9 and go through E-Verify may be significantly different than what the employee had presented to the employer at the initial time of hire. If a current employee seeks to update his or her identification or work authorization information based on a recent acquisition of legal status, employers should contact legal counsel regarding the steps to take.

Similarly, employers may experience a high return of former employees presenting new identification or work authorization information based on obtaining legal status. Whether or not employers decide to rehire these individuals or to continue to employ current employees who present new information is a business decision and the prudent employer should consult legal counsel about the actions to take when rehiring former employees who now present new or different documents to complete the I-9 and E-Verify process.

Companies should be completing internal I-9 and E-Verify training regularly, conducting internal audits and ensuring immigration compliance is occurring at theircompanies. The Cavanagh Law Firm offers a wide array of legal services involving the Form I-9, E-Verify, immigration compliance, audits, and employment law issues including training employers to understand their immigration compliance obligation, while avoiding harassment, discrimination, and retaliation.

Julie Pace’s practice handles employment law, handbooks, drug and alcohol policies, I-9 and E-Verify compliance, OSHA, independent contractor and alleged misclassification issues with DES and other government agencies, and defends claims of sexual harassment, employment discrimination, retaliation, whistleblower, and wrongful discharge, and against charges by the EEOC or ACRD. She handles matters involving OSHA, ICE, OFCCP, DOL, NLRB, ADA, FMLA, and wage and hour laws. She regularly provides training to companies and assists with investigations. Julie can be reached at 602-322-4046 or [email protected]">[email protected].

Back to school time is here!

shannon — Mon, 25 Aug 2014 04:40:06 +0000

Every August millions of students return to school from summer vacation. While it may not seem that relevant to the 9 to 5 workforce, the school year can impact employers in several ways, from internships to continuing education benefits Here are a few things to look out for as school gets back in session.

Ending internships

The internship should be for a set amount of time, established prior to the start of the internship. Further, unpaid internships should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, the court will consider that individual to be an employee under the FLSA.

Student learners

Individuals who qualify as student learners are not prohibited from working in certain occupations which are otherwise restricted to them by virtue of their age. To qualify, the individual must meet the following criteria:

16 to 18 years of age
enrolled in a youth vocation training program under a recognized state or local educational authority
employed under a written agreement which contains the name of the student learner, and is signed by the employer, school coordinator, principal and parent or legal guardian. The agreement must provide that:
- the work in the occupation declared particularly hazardous will be incidental to the training
- the work will be intermittent and for short periods of time and under the direct and close supervision of a qualified and experienced person
- that safety instruction will be given by the school and correlated by the employer with on-the-job training
- a schedule of organized and progressive work processes to be performed on the job will be prepared.

Only certain occupations, otherwise prohibited for individuals under age 18, are permitted under this exception for student learners.

Continuing education benefits

Some employers provide educational assistance to employees for certain education expenses incurred by its employees on a tax-advantaged basis.

Qualifying expenses include:

tuition
fees
supplies
books
equipment.

Qualifying expenses generally do not include:

education related to hobbies
games
sports.

Undergraduate and graduate degree courses may qualify.

Employers are not obligated to reimburse employees for continuing education programs. Many employers choose to do so, however, because they believe such programs benefit the company by encouraging employees to become better educated in their respective fields of specialization and thereby improving company productivity.

If an employer elects to have a tuition reimbursement program, its terms should be in writing and contain the requirements for receiving reimbursement. To provide the employee funds for educational purposes in advance, the employer may wish to utilize a loan document and wage assignment to authorize payroll deduction in the event the employee terminates employment prior to completing the course or otherwise fails to complete or pass the course. It also should be noted that employees generally must be compensated for time spent attending mandatory on‑the‑job training programs or seminars.

SAMPLE POLICY

As a full‑time employee of ABC Company, you may qualify for tuition reimbursement. The Company will reimburse you fully for tuition, fees, and books for courses taken that are directly related to improvement of relevant job skills with the Company. This policy also covers all courses taken to fulfill the requirements of a degree program approved by your manager. All reimbursements are subject to the approval of your supervisor or manager and the Human Resources Manager.

All tuition reimbursements must be requested in writing and approved prior to beginning the course. Reimbursement may be subject to taxes. To qualify for reimbursement, you must receive a passing grade and you must be an employee in good standing at the time of reimbursement. Courses must be taken at times other than during scheduled working hours. Proof of passing grade or certificate of satisfactory course completion and receipts for tuition, fees, and books must be turned in to the Human Resources Department in order to receive your reimbursement.

Parental leave

During the last decade, there has been an increased interest in promoting flexibility for employees with caregiver responsibilities, including parents of school-aged children. Federal lawmakers have proposed amending the Family and Medical Leave Act (FMLA) to allow employees to take unpaid leave to participate in their children's school-related and educational activities. These activities might include parent-teacher conferences, class parties, volunteer activities, assemblies, sporting events, and other extracurricular activities. Currently, there is no obligation under either federal law to offer employees parental leave. If the employer elects to offer paid or unpaid parental leave, a policy should be spelled out in clear and detailed terms so that employees understand the nature and limitations of the benefit.

Some employers choose not to offer parental leave because it is a benefit that is not available to all employees and because parental leave can be difficult to define and limit. Alternatively, if an employer does not want to offer separate parental leave, the employer’s policies concerning personal days or paid time off (PTO) (discussed above) could provide that such leave can be used at the employee’s discretion for activities such as parent-teacher conferences or other school events.

SAMPLE POLICY

ABC Company recognizes that many of its employees must balance work requirements with parental responsibilities. For this reason, the Company provides unpaid parental leave to full‑time employees who are the parent, guardian, or foster parent of a child (or children) who is attending school or licensed daycare and is under age 18. Parental leave may be used only for the employee’s attendance of conferences or classroom activities that cannot be scheduled during the employee’s non-work hours.

Eligible employees may take up to 10 hours of unpaid parental leave per child during any calendar year. An employee may substitute accrued paid vacation leave or other appropriate paid leave for unpaid parental leave. Parental leave must be requested at least one week in advance and approved by Human Resources and the employee’s supervisor. Employees using unpaid parental leave may be required to provide written documentation of their attendance of a conference or classroom activity.

Nepotism: Favoring relatives and friends in the workplace

shannon — Tue, 05 Aug 2014 00:57:37 +0000

It is not unusual for multiple members of a family to work for the same employer. However, such situations can be troublesome if the family members are in a superior-subordinate relationship because:

the relationship may give rise to favoritism or to suspicions of it
the subordinate family member takes advantage of the situation by not working as hard or by not following the orders of the superior family member
the superior family member cannot or will not control the activities of the subordinate (including administering discipline when needed or offering constructive criticism on performance evaluations).

It sometimes happens that employees in a superior-subordinate relationship marry during the employment. Employers generally allow both parties to remain with the company unless there is no open position to which one of the employees may be moved. However, it is important to address such situations on a case-by-case basis to avoid gender discrimination claims.

In hiring

The recruitment of current employees’ relatives tends to perpetuate the racial, religious and ethnic characteristics of the existing workforce. Therefore, nepotistic recruiting may be discriminatory where the current workforce is predominantly or exclusively of one race, religion or ethnic group.

Policies against nepotism

Anti-nepotism policies prevent related individuals from working in the same company or department. Employers choosing to adopt such a policy should state that cases concerning the employment of relatives will be dealt with on a case-by-case basis to ensure maximum flexibility in handling such situations. Also, the policy should contain an explanation of why the employer discourages the employment of relatives and should describe the circumstances and types of relationships covered by the policy. The employer might also include a list of circumstances and relationships that would be permitted by the policy.

There are a number of sound reasons for anti-nepotism rules and “no fraternization” policies including:

avoiding involvement in emotional problems at the home
avoiding supervisory conflicts between spouses and relatives
avoiding hiring decisions based on favoritism or the appearance of favoritism
avoiding vacation and day off scheduling problems
avoiding family influence regarding grievances and work conflicts.

Title VII does not prohibit discrimination on the basis of marital status. However, many state laws prohibit employers from discriminating based on marital status.

A thoughtful “anti-nepotism” policy should allow the employment of family members while avoiding the common operational issues associated with such situations.

Sample anti-nepotism policy

ABC Company welcomes the opportunity to hire and retain qualified employees who are related to one another by blood or marriage. However, since such relationships sometimes can create problems in the workplace, including suspicions of favoritism if the related employees are in a supervisor-subordinate relationship, it is the policy of ABC that:

Any employee of ABC who has or acquires a familial relationship (as defined below) with another employee shall not have any direct or indirect administrative or operational authority over the other person. This prohibition means not only that a person cannot supervise a family member but also that the family member cannot be in that person's chain of command; for example, a family member cannot work in a department in which a family member is the Vice President.
An employee of ABC cannot use his/her authority or position with ABC to benefit or to disadvantage another employee in a familial relationship. Although all such potential misuses of authority cannot be listed here, examples include an employee signing an evaluation for a family member or signing/approving a check payable to a family member.
Employees are required to notify the company’s Human Resources Department of (a) any existing familial relationships; (b) any familial relationships that are created among employees (for example, by the marriage of two employees); and (c) the potential employment by ABC of a family member.
ABC will refuse to hire a job applicant who is in a familial relationship with a current employee if the applicant would be in a supervisory or subordinate position to the existing employee. ABC employees who marry one another during their employment will be allowed to remain with the company unless they are in a superior-subordinate relationship and there is no open position to which one of them may be moved.
“Familial relationship” within the meaning of this policy means two employees (or an employee and a job applicant) in the relationship of husband, wife, father, mother, brother, sister, son, daughter, uncle, aunt, nephew, niece, grandfather, grandmother, grandson or granddaughter, or any of those relationships arising as a result of marriage (for example, brother-in-law).

Need more employee policies? Check out what’s available for your state here.

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Whistleblowing

shannon — Tue, 29 Jul 2014 02:29:07 +0000

What is whistleblowing?

While the definition of whistleblower varies depending on the statue being cited, the term generally describes an employee who reports an employer for violations of laws or regulations.

To give a little more detail we can look at one commonly cited definition of whistleblower, found in the Occupational Safety and Health Act (OSH Act):

“No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise of such employee on the behalf of himself, herself, or others of any right afforded under this Act.”

What are the possible sources of whistleblower protection?

There are various sources a whistleblowing employee may turn to in seeking protection against employer retaliation. These sources include:

federal statutes
state statutes
retaliatory discharge claims based on state common law exceptions to the employment-at-will doctrine.

When it comes to federal and state statutory protection, whistleblower protection for employees may result from general whistleblower laws or topic-/industry-specific statutes that cover whistleblowing. These topic- and industry-specific statutes may provide protection to certain employees who report employer actions that violate the particular statute. However, not all state and federal statutes contain whistleblower provisions.

What protections are there for whistleblowers under federal law?

There are several federal protections for employees who decide to report their employers. Additionally, many states have their own laws to protect whistleblowers – employers should check with their Department of Labor for more information.

The Occupation Safety and Health Act (OSHA)
Section 11(c) of the Occupational Safety and Health Act protects employees from discrimination for filing an OSHA complaint. Further testimony in an OSHA proceeding (including inspections) are protected, as are safety complaints to an employee’s employer.
An employee alleging a violation of Section 11(c) of OSHA may file a complaint with the Director of OSHA within 30 days of the alleged violation – unless there is a basis to equitably toll the 30-day requirement.
Sarbanes-Oxley
Employees of publicly traded companies are protected by whistleblowing provisions of Section 806 of the Sarbanes-Oxley Act from retaliation for:
filing complaints
providing information
testifying regarding employer conduct the employee reasonably believes violates:
mail, bank, wire or securities laws
or
any rule of the Securities and Exchange Commission
or
any federal law relating to frauds against shareholders.
False Claims Act
The False Claims Act protects employees reporting on their employers and/or others who are defrauding government programs. Complaining parties are entitled under a qui tam provision, which allows individuals to sue on the government’s behalf and be entitled to a percentage of any recovered damages. Actions are brought in federal court.

How can employers avoid whistleblower claims?

Employees may find protection from employer retaliation from a variety of sources. To prevent whistleblower claims, employers should familiarize themselves with the laws that apply to their particular operations, including state and federal statutes and any applicable anti-retaliation provisions. Employers should also consider implementing procedures to address employee reports of co-worker or employer wrongdoing. Examples of such procedures include established methods to govern investigations and/or how to implement corrective measures. In addition, employers should remember the main purposes behind whistleblower laws are:

to protect employees who engage in good-faith reporting of employer wrongdoing
and
to encourage employee reporting of employer wrongdoing.

When dealing with whistleblowers, employers should remember the purpose of whistleblower laws and the protections they potentially afford to employees.

Non-compete agreements

shannon — Mon, 14 Jul 2014 19:14:16 +0000

One of the most problematic parts of ending an employment relationship is what happens afterwards. While it is clear that the employee must go in a new direction, there can be some confusion as to what an employer can do to make sure its business interests aren’t negatively impacted. When an employee relocates or goes out on their own they may want to take clients, staff, information or ideas with them, but there are a few things employers can do to safeguard these valuable assets.

Non-compete agreements

One way employers can protect themselves is by having employees sign non-compete agreements –agreements that prohibit the employee from competing with his or her employer during and after termination of employment.

Absence of a non-compete agreement, a company’s former employees are free to:

immediately work for a competitor
solicit their former employer’s customers and employees
disclose confidential information that does not rise to the level of a trade secret.

There are a few guidelines employers must follow to make these agreements enforceable, and also to protect an employee’s ability to find work post termination.

Be reasonable in geographic scope and duration.

The restrictions must be reasonable as to the length of time and geographic area. Generally, the greatest danger of employees working for the competition happens in the months immediately following termination, therefore non-compete agreements that restrict employment for a period of longer than two years may be declared invalid. Although not universal, agreements of one year or less are generally held to be acceptable.

Protect a legitimate business concern

Restrictions in a non-compete agreement must protect legitimate business concerns in order to be enforceable. Most states require employers to prove a legitimate business interest that goes beyond merely not wanting to compete with an ex-employee. The definition of a legitimate business interest that is sufficient to support a non-compete varies, but may include the protection of trade secrets, prevention of an employee’s release of confidential information regarding the employer’s customers, or an employee’s services to the employer that are deemed special or unique.

Other factors affecting enforceability

Some courts have also looked to other factors, including whether the agreement will essentially prevent the employee from working in his or her chosen field, whether the restriction will cause the employee undue hardship, and whether the employer has enforced non-competes against other employees. In general, enforceability can be judged on what is overall fair to both the employer and employee.

Trade secrets

A trade secret is information that derives economic value from being generally unknown to others who can obtain economic value from its disclosure or use, and is the subject of reasonable efforts to maintain its secrecy. Trade secrets work hand-in-hand with non-compete agreements to protect employers in that they are the information that is being protected by such agreements. Trade secrets are protected under the laws of every state in the United States. Even where an employer does not have a written contract with an employee governing the protection of trade secret information, the employer’s trade secrets are protected by statute or under the common law.

Trade secrets are generally defined as information that:

is not generally known in an industry
derives economic value by virtue of its secrecy
is the subject of secrecy efforts that are reasonable under the circumstances.

Generally, for information to qualify as a trade secret, the employer must make an effort to maintain the secrecy of the information. Here are a few examples of what employers can do to protect their trade secrets:

conduct proper background checks on new employees
label trade secrets prominently with “confidential” or “proprietary”
limit distribution of documents to “need to know” or “need to use” personnel
limit access to computer areas and computer systems
install screen savers and server passwords to protect computer systems
place restrictions on photocopying through the use of logs or central photocopying
use document destruction systems such as in-house shredding
conduct exit interviews for every departing employee to make sure that all trade secrets or confidential information remain with the company and to reemphasize the duty of confidentiality to these employees.

Non-compete agreements and trade secrets in hiring

Most employers think of non-compete agreements and trade secrets as subjects only considered in the context of protecting a company from unfair competition by others. However, this is a far too narrow view. Considerations should be made during the hiring process as to whether or not the applicant might be held under any restrictions based upon prior employment. Not only could such restrictions limit the suitability of the individual for the new job, but could also result in having the new employer dragged into court as a defendant in a claim for unlawfully interfering with the prior employer’s rights. Care should always be taken to ensure that an overly enthusiastic new hire does not upload files or other documents onto the new employer’s computer system that were wrongly acquired from a prior employer.

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Employment at-will

shannon — Mon, 23 Jun 2014 17:29:56 +0000

When people speak of the employment relationship being employment at-will, that means that the contract between the employer and the employee provides that the employee may resign at any time, for any reason, and the employer may terminate the employee at any time, for any lawful reason. At-will employment is for an indefinite duration and may be terminated by either the employee or the employer, at any time, with or without notice, with or without cause, for any reason that is not prohibited by law.

Generally, employment is at-will, but establishing and maintaining employment at-will policies can help by discouraging employees and plaintiffs’ attorneys from bringing breach of contract employment claims, reducing the likelihood that the employer will be sued.

Preserving at-will status

There are a few things employers can do to maintain the employment at-will relationship, which can protect them from litigation.

Require an employment application
Some companies have gotten away from requiring application forms and, instead, rely on resumes and letters of interest. While these documents may provide helpful information to the company, they should not be accepted in lieu of a completed application form. Among other things, applications, when properly drafted, assist the company in preserving its status as an at-will employer by requiring the candidate to acknowledge in writing that all employment with the company is at-will. Including a phrase like the one below at the end of the application can give an employer protection from wrongful termination claims:
“I understand that, if hired, my employment will be strictly at will. That means that my employment is for an indefinite period and that the company or I may terminate the employment at any time, for any or no reason, with or without notice or intermediate steps. I further understand that no verbal statements or statements in any company policy or procedure manual, employee handbook, or other document shall be construed to have altered the at-will nature of my employment. No company manager or representative shall be authorized to make any representations to the contrary.”
Offer letter disclaimer
To avoid the risk of the offer letter jeopardizing the at-will nature of the employment relationship, companies should do two things:
- refrain from making any reference to the company’s employee handbook, manuals or employment policies
- and
- include specific at-will disclaimer in the offer letter, such as the following:
  - “As you may know, all employment with our company is at-will, which means that either you or the company will be free, at any time, with or without notice, to terminate the employment relationship, for any or no
Handbook/acknowledgement disclaimers
To minimize the risk of legal liability from employee handbooks or other written policies, employers should include a legally enforceable disclaimer provision in the handbook and acknowledgement form.
Other company documents
A handbook and acknowledgement form disclaimer, even if well-drafted, may not protect the employer if other provisions in the handbook suggest continued employment or termination only for certain occurrences. To minimize this risk, employers should include an at-will disclaimer in documents that could imply continued employment for a definite period or termination only for certain occurrences. Examples include annual bonus or commission plans, disciplinary documentation and performance review plans.

Need more policies and forms? Our Model Employee Policies and Forms for Employers are packed with hundreds of customizable and downloadable policies and forms. Simply click, save and print any form or policies or access them from the cloud whenever and wherever you need them.

I-9 Form, ins and outs

shannon — Tue, 17 Jun 2014 12:51:54 +0000

We all know that the I-9 form is an essential part of the hiring process. The form verifies that employees are legally eligible to work in the United States by requiring employees to submit a combination of forms of identification. While most employers know that an I-9 form is required for new employees, there are several aspects of the form that if done improperly can lead to issues. Here are some quick tips to keep your employment eligibility process running smoothly:

Don’t be overeager.

The I-9 form should only be filled out once an employee has been hired. The regulations require Section 1 to be completed on the first day of employment, but employers are permitted three business days to complete the entire form. Requiring applicants to fill out any paperwork concerning citizenship can lead to claims of discrimination and should be avoided.

Make sure you are using the right form.

The form has undergone several changes over the last few years, and employers should be sure they are using the most recent edition, as many employers use copies of the same form without checking for updates. On March 8, 2013, the USCIS released a new, 2-page I-9 form (9 pages total with explanations) with an expiration date of 03/31/2016. This updated form is currently the only acceptable edition and can be downloaded here:

www.uscis.gov/files/form/i-9.pdf

Follow the directions.

There are several instructions about how the form should be filled out that seem small but could result in the I-9 form being rejected. For example:

Use black or blue ink on the I-9 Form.
Do not use different color or type of ink in the same section.
Do not have more than one handwriting in the same Section (unless person filling out Section 2 is also preparer/translator).
Do not use pencil.
Expiration date of documents must be written as month/day/year (do not use day/month/year).
If a mistake occurs during completion of the form, start over with a new form.

Handle documentation properly.

Section 2 is all about employees submitting the right documents, which are used by the employer to verify identity and work eligibility. An employee must present either:

an acceptable document from List A
or
acceptable documents from both List B and List C.

While this seems easy enough, many employers get caught making silly mistakes. Here are a few things to watch out for.

Don’t tell an employee which documents they can and cannot use. Give them the list and let them chose for themselves.
Don’t fill out more than you need to. If you use a List A document, do not fill out List B and List C documents.
Do examine the original documents and verify that they appear genuine – making sure the photo or the description of the person reasonably matches the person showing the documents to you (for example, height, age, race or gender) and that the documents are original and unexpired.
Do not accept photocopies of documents. Only original documents are acceptable. If the employee cannot produce original documents to complete the I-9 Form, the employee cannot work at the company.

Now that you can navigate the choppy seas of employment verification, your I-9 form journeys should be smooth sailing!

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Employment references

shannon — Thu, 08 May 2014 20:25:44 +0000

Finding new employees can be stressful. Sure, an applicant will say they are a hardworking overachiever, but are they being honest? That's where reference checks come in. For most positions, it is beneficial for an employer to request and contact previous employers to check on perspective employees as it can protect the employer in any future negligent hiring claims. But what is the right way to get a reference? And what is the right way to give a reference for your own past employees?

Before conducting the check

While there is no law requiring so, an employer should protect themselves by having the applicant sign a broad release before conducting any reference checks. Additionally, employers may be more willing to share information if such a waiver is in place.

Make sure to have a completed application on hand so you can confirm dates of employment and title to make sure the applicant didn't misrepresent themselves.

During the check

While employers may be tempted to gossip or poke for more personal information it is best to stick to the facts. When contacting references, prospective employers should request basic information such as:

dates of employment
job duties
performance assessments
wage history
discipline record
tendency for violence
circumstances surrounding discharge
eligibility for rehire.

The questions asked on the reference check should be specifically job-related and designed to obtain objective information regarding the applicant’s prior job performance.

While employers may not want to share some of this information, employers should make inquiries and take notes in case a negligent hiring claim is brought against them in the future. If the former employer will only provide you with name, former position, and dates of employment, ask if they would rehire the applicant, after all that is the best reference an employer can give.

When giving references

Employers may choose to adopt a policy of providing only “name, rank, and serial number” information about former employees. Under such a policy, employers should decline to volunteer any subjective or undocumented information and provide only the dates of employment and the positions held by the employee to avoid claims of defamation, slander, breach of privacy, or retaliation. Truth is the best defense to any of these claims, so only provide factual, supportable information.

Some employers find it helpful to give references in writing to avoid disclosing too much information. In this case employers should use the same form for each reference given, and stick to the information requested. Such forms can be emailed and then retained in the employee's file. An example is provided below.

Also, employers should make notes of the reference, who it was given to, when, and what was discussed. This information can be helpful in a future lawsuit, and can be kept in the employee's file.

employment reference

Name of applicant:______________________________________________________________________

Stated dates of employment:____________________________________________________________

1. Employed from:____________________________ to _____________________________

2. Reason for termination:__________________________________________________________

3. First job title:_______________________________________ Pay rate_______________

4. Last job title:_______________________________________ Pay rate_______________

5. Description of duties in last position:________________________________________________

6. Eligible for rehire: o Yes o No

If no, why not?__________________________________________________________________

_______________________________________________________________________________

PLEASE RATE THE FOLLOWING:	OUT- STANDING	ABOVE AVERAGE	AVERAGE	BELOW AVERAGE
Skills
Quality of Work
Quantity of Work
Conduct
Attendance

Date:______________________ Signature:________________________________________

Title:_____________________________________________

Company:

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