New I-9 Form Becomes Mandatory May 7.

The 1986 Immigration Reform and Control Act (IRCA) requires U.S. employers to verify the identity and work eligibility of all individuals, whether U.S. citizens or not, hired after November 6, 1986. Employers are required to complete an Employment Eligibility Verification Form I-9, for every new employee.  The recently published new I-9 form becomes mandatory for all new hires beginning on May 7, 2013. Until then, employers may continue using the old form, at their discretion.  Employers should not complete a new I-9 Form for current employees for whom an I-9 Form is already on file.

The new form is two pages, which should reduce confusion about which part is to be completed by the employer and which by the employee, since each is now on a separate page. Additionally, the new form contains fields for foreign nationals to provide their I-94 and passport numbers, and provides clarification about acceptable documentation.  In addition, beginning April 30, 2013, through a new automated I-94 process, foreign nationals will be able to access their I-94 number through a secure website. 

I-9 Forms should be completedby a new employee by the first day of employment, but may be completed by the employee any time after the acceptance of the job offer.  Employers should review the employee's documents and complete the Employer section of the I-9 within (3) business days of the first date of employment. 

In addition to the new form, a new Handbook for Employers on filling out the I-9 was released.  The new form is available from the USCIS website or here.  

Lessons On Bad Deeds and Last Chances....

Between Jerry Sandusky, Bernie Fine and Mike Rice, one might assume that big-team athletics coaches routinely act in wildly inappropriate ways, only to have management cover up their problems or wrist-slap them to save the program.  Of course in these recent notorious cases the actions eventually came to public light and blew up quickly and large.  While these sports-world tales have seemingly little to do with the more average workplace with its more average problems, they serve as cautionary tales -- specifically with regard to the importance of good employee management of misdeeds.

The key mistake made in each of these cases was the decision-makers NOT thinking about what would happen when the story of their response became known.  In the public world of sports, that is an unforgivable error.  But the same error can be similarly fatal in the average workplace when dealing with sticky situations.  If employers were to adopt the standard of "How would an article about this sound to me if I were reading it in the paper?" many problems could be avoided.

This standard cuts both ways -- it means freeing employers to act reasonably following an investigation, even when they may feel someone is 'untouchable' because they are the only Muslim/Jewish/gay/immigrant/disabled/over-40 employee or because the employee recently complained about harassment or took FMLA leave.  More importantly, it also means forcing employers not to look the other way or give "one last chance" or "cut a little slack" when a long-time or highly compensated or otherwise "good" employee does something egregious.  Of course, in most cases, when there is an employee issue, a measured, reasonable response is in order. Employees who are treated fairly and with respect tend to have loyalty and perform better.  The problems occur, however, when the actions or misdeeds are truly big or when the mistakes are smaller, but the perpetrator is higher up or "too important" to the Company.  In some cases, the analysis might require a more nuanced legal approach, but employers would be better off starting the analysis imagining how the action they are about to take -- or not take -- would sound in a national paper explaining the facts. If the thought makes you smile a little, you are likely doing the right thing.

Mass. Federal Court: Employees Must Follow FMLA Rules

This week, in what may be seen as a gift to employers, a Massachusetts federal court upheld an employers right to require employees to follow the rules when requesting FMLA leave. The Court found that the employee, who suffered from breast cancer, failed to make the necessary good faith effort to provide timely FMLA certification to her employer and so could not claim her unexcused absences were covered by the FMLA.  The case, Brookins v. Staples Contract & Commercial, Inc., provides employers with a real life example of what employees can and cannot do with regard to FMLA leave.  

The employee, Brookins, suffered from a recurrence of breast cancer.  Brookins also had a record of unexcused absences, which put her at risk for termination.  When her employer brought her attendance problems to her attention, Brookins disclosed for the first time, the recurrence of her illness and stated that many of the absences at issue were related to her treatment.  In accordance with the FMLA regulation (29 C.F.R. § 825.305(b)), the employer gave Brookins 15 days to return the certification form.  

When Brookins did not return the certification for approximately 6 weeks (after having been granted numerous extensions), her employer converted her absences to unexcused leave and terminated her employment. Brookins sued for FMLA interference and retaliation, both of which the Court dismissed on summary judgment.

Insights for Employers

Under FMLA regulations, while employers have the right to request that an employee obtain sufficient medical certification to support an FMLA covered absence within 15 days, employees failing to comply can maintain their entitlement if the request for certification when it is "not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts."  29 C.F.R. § 825.305(b)

Since Brookins blew the 15 day turnaround, she could save her FMLA claim only if she could establish "diligent, good faith efforts" to return the certification on time, which the Court found she did not do. Brookins asked two surgeons to fill out the form.  Each declined.  She did not do anything else to fulfill her obligation and so the Court found she did not meet her burden.

The Court pointed out what Brookins could have done but did not, namely:

1. Asking her primary care provider, her oncologist or her OB-GYN for the certification, since she saw each of them soon after she had requested the certification from her surgeons;
2. Contacting the surgeons she had asked for the certification again, explaining the importance of completing the certification;
3. Mailing or hand delivering the form to any of her doctors.
4. Contacting her employer to explain her difficulties in obtaining timely certification and requesting an extension before the 15-day deadline expired. 

Each of these steps not taken provides employers with a helpful example of what they can expect from employees requesting FMLA leave.  Employers can deny a request for FMLA leave to employees who do not comply with their obligations to use diligent good faith to provide certification.  29 C.F.R. § 825.313.

Simply, even employees otherwise eligible for FMLA leave must follow the rules in order to be covered by the law's protections.

MCAD Wins, Even When They Lose

"Whether you win or lose, you always win."  That was one of the more annoying things I learned to say on cue while at summer camp in my adolescence -- but like everyone else, I knew it was not really true. Yet, the MCAD, right after being dealt a blow by the SJC, the highest state court in Massachusetts, and being told to bud out of religious schools' personnel decisions, declared victory in its press release. Strange, but telling.

The case, filed at the MCAD by a religious school teacher against Temple Emanuel's religious school, alleged age discrimination.  The Temple brought a motion to dismiss for lack of subject matter jurisdiction on first amendment (religion) grounds, which the MCAD denied without a statement of reason.  The Temple appealed to the full Commission, which denied the appeal, again without reason, and ordered the Temple to provide the MCAD with its position statement and responses to considerable discovery requests.  The Temple filed a complaint against the MCAD in Superior Court, requesting a declaration that the MCAD had no jurisdiction and a preliminary injunction forcing the MCAD to dismiss the case.  The Superior Court agreed with the Temple and concluded that the employment decision was protected because "Hilsenrath's role as teacher at the religious school simply cannot be extracted from the school's overall religious mission and integration" into the synagogue. The commission appealed and the SJC took the case on its own motion.

The SJC, in Temple Emanuel v. MCAD, determined that the MCAD had jurisdiction to hear the case, but must consider the first amendment as an affirmative defense.  However, because the first amendment bars dictating to a religious school who should teach religion, (and perhaps the SJC did not want to trust the MCAD on remand here) the SJC ordered the MCAD to dismiss the case.  

So why is the MCAD celebrating?  Unfortunately, the simple answer is that the SJC said the MCAD can continue harassing religious employers who are clearly protected by the first amendment in their employment decisions by demanding their participation in an expensive and burdensome process each time the MCAD receives an employment discrimination complaint.  However, religious institution employers should take heart that the law is clear and, in fact, was expanded from its previous application to "ministers" to covering anyone who is involved in teaching religion.  But there is no avoiding the process -- employers must exhaust their remedies at the MCAD by consistently asserting their affirmative defenses and complying with MCAD requirements and only then can they expect to be let alone.  That expensive process has many employers trading away their rights for cheaper settlements.  And that is why the MCAD is celebrating.  

Don't get caught in the crossfire.  If you believe you may be engaging in an action that could start a lengthy MCAD battle, engage employment counsel before it gets out of hand.  If you need to respond quickly, as you do at the MCAD, make sure all jurisdictional and other defenses are asserted clearly early and often.  It may take a while, and the MCAD can make it painful, but it cannot ignore well grounded Constitutional rights or defenses.   

New Year's Resolutions

Now that we have hit 2013 and not fallen off the cliff (yet), it is time for some careful reflection on resolutions that can make us not only fitter and lighter as people, but also make our organizations fitter, more agile, and with less potential liability.  Knowledge is power.  Just like it is worth knowing which exercise burns more calories both during and following a workout, it is imperative to know the rules that govern your world as an employer.  Start at the beginning and do a formal or informal audit.  Below are some good questions to start you off.  Check out the many embedded links for helpful definitions and resources available online :

• How do we make sure our employment application is compliant with Massachusetts law (among other things, make sure it does not ask for CORI information in the application);
• How do we make sure every person conducting employment interviews know the questions he or she CANNOT ask?
• How do we gather I-9 and W-4 information and keep it secure and protect privacy?
• How do we protect our intellectual property and competitive edge with employees who have access to such information?
• How do we make sure we comply with all the appropriate office-place posting requirements?
• How do we maintain employee files and make sure the right things get into each employee's "employment record" in compliance with Massachusetss' strict employment record statute?
• How do we make sure we comply with the legal requirement to inform employees every time something that can be relied upon to evaluate them is placed into their employment record?
• How to we make sure all supervisors are well trained in preventing discrimination and harassment?
• How do we comply with the requirement in MGL 151B of distributing our sexual harassment policy to all employees upon hire and annually thereafter?
• How do we make sure we have classified employees correctly under the FLSA - and are paying overtime correctly to all non-exempt employees?
• How do we make sure that we protect our right as an employer to conduct an investigation into wrongdoing or for other good reason to to access and review Internet or email use at work or on work accounts?
• How do we make sure that employee evaluations are done fairly and frequently enough to ensure that we catch misconduct or poor performance before it is too late?
• How do we make sure that we know our obligations to provide protected leave to employees under state law and under the ADA, the FMLA, and USERRA when applicable?

Of course, the list can go on and on.  But if you choose just a few areas for a focused audit, you can be sure that improvements will be made where they are needed. Use online resources and legal counsel where needed. Every process that is improved before a problem is brought to light, means hours of saved time and averted crises.  That means you get to focus more on the business of what you do best.  Happy 2013!