Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

I hope everyone had a good long Labor Day weekend and didn't get too much rain.  Today, I will talk about a number of issues that have an impact at work.

I-9 Forms Still Valid.  The most recent version of the I-9 had an OMB expiration date of August 31.  Notwithstanding last weeks expiration date, the U.S. Citizenship and Immigration Services (USCIS) announced that the current version of the I-9 will remain in effect until they finalize revisions to the form.  As a reminder, new employees are required to complete the I-9 form no later than their first day of employment, and the employer has 3 business days to review any supporting documents and must complete section 2 of the form.  For Alabama employers, the use of E-Verify is mandatory for new employees.

 ICE Sued for Discrimination Against Men.  Speaking of ICE, James T. Hayes, a top immigration official in New York, alleges that he was removed from a high level position in favor a a less-qualified woman because he was a man. He is also alleging that he was retaliated against when he threatened to file the lawsuit. The NY Times  reported that the agency's Chief of Staff, Suzanne Barr, initially voluntarily left the agency on paid leave pending the outcome of an internal investigation, and resigned this past weekend.  It will be interesting to see how this case is resolved. 

Bad Bosses.  Having a son who plays baseball for Rhodes College, I am very sympathetic for baseball parents.  My nominee for the worst boss of the year award goes to the boss of Billie Ann Tomei.  Her son, Cole, plays baseball for the Petaluma National All-Stars, and Trevor, her husband, is the coach.  Petaluma advanced to the Little League World Series held in Pennsylvania after winning the West Regional Tournament.  Billie Ann was working as the office manager for a CPA in Petaluma, and she asked for time off to attend the West Regionals.  His response?  "(My boss) wouldn't let me take time off...He told me, 'If you go, write yourself your last check'.  So I wrote myself my last check."  I wonder how much business the Petaluma CPA will lose as a result of his decision.

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HB 56 Update.  April's Fools day.  My birthday.  Mandatory use of E-Verify for all employers in Alabama.  April 1 is the magical day for all of these.  Over the past month, I have had many clients asking questions about what they need to do to comply with HB 56 and the E-Verify requirements.   The E-Verify provisions of HB 56 were not challenged in court, and thus are the law.  Since September 1, 2011, when the law became effective, it has been illegal to knowingly employ, hire or continue to employ an unauthorized alien.  All businesses and entities doing business with the state, any political subdivision of the state or any state funded agency were required to start using E-Verify as a condition of an award of such a contract effective January 1.  I have seen a number of forms used by various public entities that they have sent out to their contractors that must be completed in order to continue doing business.  As of April 1, all employers and business entities, which are broadly defined, must use E-Verify for all new employees that are hired.   Violations can lead to severe consequences, including the permanent revocation of all business  licenses and permits throughout the state for a third violation. 

As I have previously posted, E-Verify CANNOT be used for existing employees, and must be used within 3 days after the new employee is hired. E-Verify DOES NOT take the place of I-9 forms:  they too must be completed withing 3 days of a new employee being hired.  I have stated before, and will state again, that I-9's should be audited to make sure that they are in compliance with federal law.  Any such audit should be done by someone knowledgeable with I-9's, because an improper audit or improper corrections may cause more of a problem then if nothing was done. 

NLRB Poster Update.  Another reminder:  the NLRB's required poster language takes effect on April 30.  I have previously posted about this requirement in detail. 

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The 11th Circuit Court of Appeals is hearing oral argument today on Alabama's Immigration law as well as Georgia's Immigration law.  The question is when will they issue their written opinions?  Some are speculating that it will be after the United States Supreme Court rules on Arizona's immigration law, which will probably be early summer.  Oral argument  before the Supreme Court is scheduled in late March.  Others think the opinions will be released prior to that.  I will keep you updated when the Supreme Court and the 11th Circuit rule. 

Recently, the Birmingham News reported that Immigrants are beginning to trickle back into Alabama.  It was reported that since some of the immigration law's provisions were blocked, and the federal government is not engaged in the mass deportation of unauthorized aliens, many are returning to Alabama, although it is more difficult to find jobs.

It will become even more difficult to find jobs starting April 1, when HB 56 REQUIRES all employers in Alabama to use the E-Verify system.  As stated in earlier blog entries, E-verify can only be used for new hires, and not for existing employees.  Could there be an increase in the hiring of unauthorized aliens prior to April 1 to avoid checking them through E-Verify?  Only time will tell. 

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As we approach the end of the 2011 Fiscal Year, September 30, the EEOC is once again busy filing suits around the country.  This year, the focus appears to be on the ADA, with over 20 suits being filed over the last 2 months.  These suits include claims involving the following disabilities:  Cerebral Palsy (McDonald's), Alcoholism (Old Dominion Freight Lines), Deafness (McCormick & Schmick's), Asthma (Insource Performance Solutions, LLC and LeGrand North America, Inc.), Epilepsy (Buy-Rite Thrift Store), Blindness (Bank of America and ITT Tech), End Stage Renal Disease (G2 Secure Staff, LLC), Traumatic Brain Injury (Outback Steakhouse), Psoriatic Arthritis (The Scooter Store), Cancer (SITA Information Networking Computing USA and The Area IV Senior Citizens Planning Council, Inc.), Gastro-Intestinal condition (Ford Motor Company), Diabetes (Kohl's Department Stores), Multiple Sclerosis (National HealthCare Corporation), a Double Amputee (J.A. Thomas and Associates), Fibromyalgia (The Children's Hospital in Colorado)and Hearing Impaired (Jewish Community Center of Greater Washington).  As you can tell, these lawsuits have been filed against companies big and small, for profit and non-profit, across the country and in many different industries.  These lawsuits come on the heels of a $75,000 settlement reached between the EEOC and Starbucks as the result of a dwarf barista, who needed a stepladder or stool to reach the coffee machines, who was fired after 3 days on the job. For a complete listing of 2010 press releases by the EEOC, you can visit their website.

Yesterday, in Texas, the EEOC filed a lawsuit against Bass Pro Shops alleging that stores in Houston, Louisiana and Alabama illegally discriminated against Black and Hispanic workers and job applicants, and retaliated against employees who raised questions and destroyed records.  The investigation began 6 years ago, and in April, 2010, the EEOC issued a Cause Determination finding that Bass discriminated against its' employees and applicants.  After attempting to negotiate a resolution since then, which was not successful, the EEOC filed its' lawsuit. 

Practice pointer.  The EEOC continues to be very aggressive in pursuing lawsuits around the country alleging numerous causes of action over which they have jurisdiction.  Getting sued by the EEOC is expensive, time consuming and can lead to negative publicity.  When an employer receives notice of a charge, it is important that the company take the appropriate steps to protect itself, from conducting an investigation, taking the appropriate corrective actions if necessary, responding to the charge in the proper manner, and treating the process with the time and attention it needs.  Failure to do so can lead to a disaster.

E-Verify.  Recently, I gave a presentation to the Greater Birmingham Apartment Association.  The use of E-Verify must be consistent with the Memorandum of Understanding (MOU) signed by the employer, Department of Homeland Security and the Social Security Administration.  One of the requirements in the MOU is that E-Verify cannot be used until after the employee is hired.  One of the attendees indicated that they use a third party to do background checks, criminal checks and use E-Verify.  When a company uses such a third party, it is important that E-Verify be used after hire, and not a part of the pre-employment screening.  I would also recommend that the employer review the MOU that the third party has with DHS and SSA.  The employer should also review the contract, if any, between it and the third party, to confirm that they are operating in compliance with the E-Verify program and with Alabama's new Immigration Law, assuming the E-Verify portions are upheld as constitutional.  Finally, on a side note, there was an interesting article published in the Wall Street Journal yesterday reporting an interesting coalition of liberals, conservative, Tea Party members and Libertarians who are against Congress passing a bill requiring the mandatory use of E-Verify by all employers in the United States.

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Last week, the Federal District Court in Maryland ruled that federal contractors must use the E-Verify system to confirm the eligibility of all newly hired as well as current employees working directly on a federal contract.  Unless there is a stay pending the appeal of this order, starting September 8, most federal contracts must include a provision mandating the use of the E-Verify system.  The United States Citizenship and Immigration Services has a website with frequently asked questions dealing with E-Verify.  A copy of the court's decision can be found here.

E-Verify is also having an impact on the state of Alabama.  Effective January 1, 2010, the city of Huntsville will require any city contractor to use the E-Verify system to screen employees.  According to the Huntsville Times, Councilman Bill Kling  "called it a "very modest proposal" to try to deter illegal immigration in a way that won't get the city sued."   Huntsville's new E-Verify requirement applies to any vendor with a city contract that totals $15,000 or more. 

Last week, at our regularly scheduled employment law seminar, Kelli Robinson spoke on how to conduct an I-9 audit.  She pointed out that U.S. Immigration and Customs Enforcement (ICE) launched an audit initiative in July by issuing Notice of Inspection to 652 businesses.  This is more notices than ICE issued in all of 2008.  With ICE data mining the E-Verify database to determine if employers are using the system to verify all workers and terminate those after receipt of final non-confirmation of work authorization, there may be more audits coming in the near future.  ICE is also using the information to detect identity theft, where the same social security number or permanent resident card is being used at multiple locations. 

Practice Pointer.  Now that Huntsville has adopted the use of the E-Verify system, I anticipate that other cities and counties, and maybe even the state, will require contractors to use the E-Verify system to check the legality of their workforce.  With the increasing use of the E-Verify system, more audits are likely by ICE for government contractors and others who are required to use the system.  Employers should audit their I-9 files to make sure that they are in compliance with immigration laws.

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