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Gunfight at the OK Stripmall

July 22nd, 2009  |  Matt Pavich  |  Add a Comment

>Arizona is the latest in a growing number of states that have restricted an employer’s right to maintain a firearm-free place of business. In enacting the new law, S. 1168, the Grand Canyon State legislature is the latest such body to put gun rights ahead of both the property rights of employers and the safety rights of just about anyone who happens near those establishments.

But the Arizona law, which forbids Arizona property owners, tenants, public and private employers and business entities from prohibiting firearms in vehicles that enter their property, is not even the most egregious example of the gun lobby’s power.

An Oklahoma law makes it unlawful for employers, private or public, to even ask employee applicants whether they own or have guns. A Florida law allows employees, including those at daycare centers, to have their guns in their car during the workday. In the battle between the business lobby and the gun lobby, it’s the National Rifle Association that is number one with a bullet.

The NRA has, in recent years, made these laws a priority and this trend should concern employers. This isn’t a case of a legislature rightly informing employers that they cannot discriminate in their hiring practices or mandating certain accommodations for persons with disabilities. These laws tell employers that they cannot enact safety measures that might step on the tender toes of the all-powerful American gun lobby.

And, have no doubt, keeping businesses gun-free is a real and serious safety issue. A 2005 survey in the American Journal of Public Health found that gun-friendly workplaces were five to seven times more likely to host workplace homicides than safety-friendly workplaces. The same survey found that 60% of major employers stated that disgruntled employees had threatened senior managers with serious physical harm. One doesn’t have to take a giant leap to imagine the potential disasters that could arise, should an unstable employee with a pistol in his trunk be given his walking papers.

Don’t these laws implicate the OSHA-mandated responsibility of employers to maintain a safe workplace? Of course they do, but in upholding a different Oklahoma law that prohibited employer gun bans, the Tenth Circuit found insufficient evidence that guns on company property constituted a real threat. In Ramsey Winch v Henry, 555 F.3d 1199 (10thCir. 2009), the court found that OSHA only requires employers to keep their workplaces free of “recognized hazards.” Because OSHA hasn’t promulgated standards prohibiting guns in the workplace, reasoned the court, guns in the workplace must not constitute a “recognized hazard.”

It’s the judicial-ese equivalent of “guns don’t kill people, people kill people.” And it completely ignores the political reality facing OSHA, a government agency, accountable to politicians who, more often than not, face intense pressure from the NRA.

So if OSHA won’t act and state legislatures insist upon allowing guns into every inch of the American fabric and the courts refuse to intervene, what can employers do? The answer is, currently, not much. Employers need to ensure that their HR policies reflect the current, dismal reality. Don’t prohibit or ask about guns in these states. And consider stocking up on Kevlar.

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“ICE, ICE baby”… please don’t come knocking on my door!

July 20th, 2009  |  Deborah Hammonds  |  Add a Comment

>In late April, the Obama Administration announced a refocused worksite enforcement strategy aimed at reducing the demand for illegal employment in the US and protecting employment opportunities for the nation’s lawful workforce. Unlike the Bush Administration’s worksite enforcement policy, which focused on large-scale raids designed to arrest and deport undocumented workers, the Obama Administration’s intention is to prioritize criminal and civil actions against employers that knowingly hire undocumented workers over actions against the illegal workers themselves. Little was said, however, about how the strategy would be implemented, but it is clear now that the Obama Administration means business.

On July 1, the Department of Homeland Security’s enforcement arm, Immigration and Customs Enforcement (ICE), launched a new initiative, investigating compliance with employers’ Form I-9 obligations, issuing an unprecedented 652 Notices of Inspection (NOIs) to businesses nationwide. The number of NOIs issued by ICE on this one day was more than the 503 total number of NOIs issued by ICE in all of Fiscal Year 2008. This action by the Obama Administration signifies that ICE will be inspecting employers’ hiring records to determine whether or not they are in compliance with US immigration law.

All employers are required to prepare and retain (for three years after the employee’s date of hire or one year after the date that the employee is discharged) the Form I-9, Employment Eligibility Verification, for each new employee they hire, regardless of that individual’s citizenship. The employer must examine the new hire’s identity and employment authorization document(s) to determine whether they reasonably appear on their face to be genuine and relate to the person presenting them. Once the employer has accepted the documents, the information is recorded on the Form I-9. Form I-9s can be retained in paper, microfilm, microfiche or electronically.

Employers have at least three days after receiving a NOI to provide the inspecting office with the requested Form I-9s for all employees employed during the period covered by the audit at the location where the office requests to see them. If it is more convenient, employers may waive the three-day notice. In addition, employers may also request an extension of time to produce the forms. The requesting office will likely also ask to review payroll or personnel records. Although no administrative subpoena or warrant is necessary to inspect Form I-9s, an employer can insist upon such a document before granting ICE access to other personal information. Note that a refusal or delay to the presentation of the Form I-9s for inspection is considered a violation of the Immigration Reform and Control Act’s (IRCA) retention requirements and may result in the imposition of civil money penalties. It is advised that employers obtain counsel prior to the NOI in order to prepare for the external audit. Further, employers should retrieve and reproduce only the documents specifically requested by the inspecting office, review and make corrections to the Form I-9s, where appropriate and abide by IRCA’s antidiscrimination obligations during the audit process.

Remember, an employer’s failure to complete or retain Form I-9s may lead to more serious charges, like knowingly hiring undocumented workers, resulting in significant civil and criminal penalties. In fact, on July 7, Krispy Kreme Doughnut Corporation reached a $40,000 fine settlement with ICE after a Form I-9 audit revealed that the company had employed dozens of undocumented workers at one of their doughnut factories in Cincinnati, Ohio. Los Angeles-based clothing manufacturer American Apparel, Inc received a notice from ICE that the agency has been unable to verify the employment eligibility of approximately 200 current American Apparel employees because of discrepancies in the employees’ I-9 Forms, according to the manufacturer in a July 1 press release. ICE also notified the company that, based upon its review, approximately 1,600 other current employees do not appear to be authorized to work in the United States. This represents approximately one-third of American Apparel’s workforce. The investigation is ongoing.

More information on these matters can be found in a recent white paper published by CCH.

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Ricci puts employers between a rock and a hard place

July 17th, 2009  |  Pamela Wolf  |  Add a Comment

>Sonia Sotomayor is undoubtedly not the only person responding to questions about the Supreme Court’s Ricci v DeStefano decision – the 5-4 opinion is surely a “hot topic” for employment attorneys and inside-counsel all across the nation. In Ricci, the Court ruled that a city’s decision not to certify firefighters’ exams, in order to avoid potential race bias claims, was discriminatory. The exams rendered no blacks and at most two Hispanics eligible for promotions. The Court’s decision may have generated many more questions than it answered.

While some US Senators sought to use the case as a litmus test for the qualifications of the Supreme Court nominee, more than a few employers and their legal counsel were likely lamenting the lack of clarity – nothing resembling a litmus test – in the High Court’s opinion as to how to meet the new standard announced for the lawful rejection of a selection procedure that has been determined to have a discriminatory impact on protected members of a workforce.

“[U]nder Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action,” wrote Justice Kennedy, joined by four other Justices. Applying this standard, the Court concluded that the city “was not entitled to disregard the tests based solely on the racial disparity in the result.”

But what exactly is “a strong basis in evidence” and how is that standard applied in the real world of employers diligently trying to meet antidiscrimination obligations? As Justice Ginsberg points out in her dissenting opinion, the “barely described” standard “makes voluntary compliance a hazardous adventure.” Given that three of her High Court colleagues agreed with her observation, how difficult will it be for employers to navigate this tricky landscape? How many varied interpretations of this new standard will we see in the coming months and years and will the Supreme Court be required to revisit the issue?

And then there is the tension that Ricci creates between Title VII’s disparate treatment and disparate impact provisions. How will employers seeking to avoid selection procedures that create a disparate impact manage not to invite at the same time a disparate treatment claim? As Justice Ginsburg laments, under the High Court’s ruling, an employer that changes an employment practice in order to comply with Title VII’s disparate impact provision is acting “because of race,” which is generally forbidden under Title VII’s disparate treatment prohibition. The Justice finds this position at odds with congressional intent and the EEOC’s interpretive guidance: “Congress did not intend to expose those who comply with the Act to charges that they are violating the very statute they are seeking to implement.”

Employers are caught between a rock and a hard place with a new standard and a new view of Title VII that likely applies to selection procedures for many other types of employment decisions. For example, consider an employer that out of good-faith efforts to comply with Title VII, performs a disparate impact analysis prior to implementing a reduction in force in order to avoid unintentional bias and associated liability. If the statistics show a disparate impact on a minority group, what should the employer do?

Under Ricci, a statistical disparity alone would likely be insufficient to justify a change in selection criteria. How much and what type of evidence of unreliability must the employer collect before rejecting the questionable procedure and implementing a new one without incurring liability for disparate treatment of non-minority members not initially identified for layoff, but selected under a new procedure?

These and many other questions will likely arise in the aftermath of Ricci. But I predict a surge in reverse discrimination cases that will soon begin to generate some answers.

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Signs show move toward stronger, broader OFCCP enforcement

July 15th, 2009  |  Cynthia L. Hackerott  |  Add a Comment

>

Although the person who will be the OFCCP Director for the Obama Administration hasn’t been announced yet, signs indicate that the President’s vision for the agency is one that will enhance its enforcement muscle and scope. At this point, we already know that Obama has requested a whopping increase to the agency’s budget and that this increase will be used to beef-up the OFCCP’s efforts to uncover compensation discrimination. We also know that the agency intends to audit significantly more construction contractors than it has in previous years in light of the increase in federal construction contractors resulting from the American Recovery and Reinvestment Act of 2009 (Recovery Act).

Under President Obama’s FY 2010 budget proposal, announced in May, the OFCCP would receive $109.521 million in funding. That amount is a $27.4-million increase over the estimated FY 2009 budget allotment (82.1 million) adopted by Congress – a striking increase of over 33 percent! The Labor Department has stated that this budget request includes $25,600,000 to fund 213 full-time equivalent employees and a new case management system. Moreover, the Labor Department has specifically stated that much of this increase is intended to support enforcement and outreach efforts related to compensation discrimination – including “improving the various approaches and investigative techniques used to evaluate compensation” and to “support litigation to amplify enforcement activities by funding external experts to verify OFCCP’s allegations and assessments to solidify its commitment to strong enforcement.”

The Recovery Act adds $3 million more for the 2009 budget estimate and $5 million more to the 2010 request. Just last week, the OFCCP posted on its website its plan to conduct 450 compliance evaluations (from July 1, 2009 through September 30, 2010) of federal contractors in receipt of Recovery Act funds in addition to roughly 5,000 federal contractors per FY targeted for audits through the agency’s existing Federal Contractor Selection System (FCSS). Although the OFCCP will audit approximately 90 supply and service contractors receiving federal contracts through Recovery Act funding, it will place a special emphasis on the construction industry because the majority (estimated at roughly 80%) of Recovery Act contractors will be recipients of direct or federally assisted funds for construction projects. To this end, the OFCCP will utilize 50 full-time equivalent employees to complete at least 360 compliance evaluations of construction contractors. By way of comparison, of the 4,333 audits the OFCCP completed in FY 2008 under the FCSS, 204 were of construction contractors. These audits were conducted by a workforce of approximately 400 compliance officers who focused primarily on supply and service contractor audits.

These developments indicate that President Obama has indeed started to implement his vision for the OFCCP, but many elements remain a mystery. For example, given that it seems the agency will continue to increase its focus on systemic discrimination (particularly systemic compensation discrimination), does that mean (as it has in the past) a reduced focus on the affirmative action aspects of federal contractor obligations? Or do the increased funding levels signal an intent to intensify the agency’s focus on affirmative action in addition to systemic discrimination?

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President Obama rounds out his picks for vacant NLRB seats

July 13th, 2009  |  David Stephanides  |  Add a Comment

>Beginning late April of this year, President Obama made his first of three nominations to the NLRB. The Board, presently composed of Chairman Wilma Liebman (D) and Member Peter Schaumber (R), has been the focus of judicial scrutiny over whether it has the authority to issue decisions as a quorum of just two. That issue was petitioned to the Supreme Court on May 27th. With that backdrop, one would believe that seating new members to the Board ought to move quickly.

While perhaps more urgent matters have stolen the spotlight, here are the President’s picks for Member, National Labor Relations Board:

  • Republican Senate staffer Brian Hayes. Hayes currently serves as the Republican labor policy director for the Senate Committee on Health, Education, Labor and Pensions. Previously, he was in private practice for over 25 years, representing management clients exclusively in all aspects of labor and employment law. Hayes has represented employers before the Board, the EEOC, and various state agencies and has extensive experience negotiating labor contracts on behalf of management clients, as well as representing clients in arbitrations, mediations and other forms of alternative dispute resolution. Before entering private practice, Hayes clerked for the Chief Judge of the NLRB and thereafter served as counsel to the Chairman of the NLRB. Hayes earned his J.D. from Georgetown University Law Center.
  • Democrat Craig Becker. Becker is associate general counsel to both the SEIU and the AFL-CIO. He received his J.D. from Yale Law School and has practiced and taught labor law for the past 27 years, as a professor of law at the UCLA School of Law and at the University of Chicago and Georgetown. Becker has published numerous articles on labor and employment law in scholarly journals and has argued labor and employment cases in virtually every federal court of appeals and before the US Supreme Court.
  • Mark Pearce, Democrat and founding partner of Creighton, Pearce, Johnsen & Giroux, a Buffalo, New York, law firm. Pearce practices union-side labor and employment law before state and federal courts and agencies. In 2008, he was appointed to the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the state department of labor in wage and hour matters. Prior to 2002, he practiced union-side labor law and employment law at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, and from 1979 to 1994 was an attorney and district trial specialist for the NLRB. Pearce received his J.D. from State University of New York. He is a Fellow in the College of Labor and Employment Lawyers.

All three nominations have been sent to the Senate; however, hearings have yet to be set on the Health, Education, Labor and Pensions Committee calendar. It’s also unclear whether the three will be considered as a package or individually.

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