Employment Law E-Newsletter—Volume 3
IS YOUR INTERNET APPLICATION POLICY OFCCP COMPLIANT?
The U. S. Office of Federal Contract Compliance Programs (“OFCCP”) is mailing notices this summer of its intent to audit employers for compliance with its Internet-Applicant rule. The rule contains a definition of an internet-applicant, as well as specific screening and record-keeping requirements. Rather than looking at who was actually hired, the focus of the agency’s probe is the selection procedure itself, regardless of its outcome, and that includes the precise words used to describe the basic qualifications required for the position.
Will your electronic recruitment pass OFCCP muster? Call Kathy Mills (610) 797-9000 x 308.
HAVE YOU PUT THE NEW I-9 PROCEDURE IN PLACE?
On November 7 the U.S. Citizenship and Immigration Services released a new I-9 form – the document employers must fill out and retain for each new or rehired employee establishing both identity and that the person has the right to work in the United States. The new form removes five (5) documents from “List A” and adds a new one – Employment Authorization Document (Form I-766). The five removed documents will no longer be acceptable as proof of the right to work in the U.S. The new procedure also eliminates the need for requiring employees to provide their Social Security numbers on the form, unless the employer participates in E-Verify, the Dep’t of Homeland Security’s electronic employment eligibility verification system. Although the new form is now the only one that is valid, the agency has agreed to provide employers a thirty (30) day “transition period,” commencing when the formal notice appeared in the Federal Register on November 26, so the grace period ends on December 26, 2007. The agency also says that it is planning additional changes in the I-9 form and process for 2008.
The revised I-9 bears a revision date of June 5, 2007, found in the lower right corner of the form and reading "(Rev. 06/05/07) N.," and is available at www.uscis.gov/files/form/I-9.pdf
Do you have questions about the I-9 changes? Call Kathy Mills (610) 797-9000 x 308.
HOW DO YOU COUNT TO 12 UNDER THE FMLA? WHAT ABOUT TO 75?
A recent First Circuit Court of Appeals decision has significantly changed the FMLA eligibility rules. The statute says that an employee is eligible for leave if s/he has been employed “for at least 12 months by the employer with respect to whom the leave is sought” and has worked for “at least 1,250 hours for that employer during the preceding 12 months.” An employee was denied leave because he had only worked for the employer for 7½ months, although he had worked more than 1,250 hours during that period. Because he had also worked for that employer more than 5 years previously, the Department of Labor took the position that his earlier employment had to be added to his current 7½ months, which totaled more than the requisite 12 months. On appeal from the District Court’s dismissal of the case, the First Circuit agreed with the DoL that the absence of the word “preceding” in the length of service requirement meant that all time worked for the employer had to be counted, regardless of the length of the break between periods of employment. Far less troublesome to employers is a Tenth Circuit decision holding that the “within 75 miles” criterion is to be measured by “driving” miles and not “as the crow flies.” Although the second facility was only 75.6 driving miles from the one at issue, the court found that the FMLA did not apply.
Having trouble formulating or implementing your FMLA policy? Call Kathy Mills (610) 797-9000 x 308.
E-DISCOVERY – SHOULD YOU WORRY?
The expansion of discovery requests (including Interrogatories and Document Requests) into electronically-stored data creates a number of issues for employers. You can be required to search and produce your company’s internal and external e-mails. The production of WORD or similar documents in electronic form reveals to the sophisticated recipient every change that was made in the document, the date it was made and who made it. How long is your e-mail recoverable after it has been “deleted”? How long is it kept before the initial “delete”? How long are your documents recoverable?
For assistance in developing an effective retention policy for electronic data, call Susan Royster (610) 797-9000 x 372.
WHO HAS DISCRETION IN SETTING OSHA PENALTIES?
Just as mandatory sentencing has taken discretion away from judges, leaving it in the hands of the prosecutor who decides which crime to allege, a recent Fifth Circuit Court of Appeals decision has removed much of the OSHA Review Board’s penalty discretion holding that it should be a matter of prosecutorial discretion for OSHA. OSHA had assessed 141 willful recordkeeping violations which, under the statute, could involve penalties of from $705,000 to $9,870,000. The Administrative Law Judge grouped the citations into a single willful one and assessed the maximum penalty. The decision was affirmed by the Board. Finding that the Board had the authority to adjust penalties within the minimums and maximums set by Congress, the Court held that it had no ability to combine violations into a lesser number. Only OSHA could determine how many violations would be cited. Not only does this decision significantly strengthen OSHA’s enforcement power, it clearly encourages the agency to invoke the “per-instance” approach when it considers the violation to be willful. Finally, taking this approach in connection with recordkeeping violations and defending it through the appellate court may well signal a new approach by the agency in regard to areas other than safety conditions.
Concerned about this potentially new OSHA initiative? Call Kathy Mills (610) 797-9000 x 308.
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