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provided herein is general in nature and designed to serve as a
guide to understanding. These materials are not to be construed as
the rendering of legal or management advice. |
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Inside this Issue:
Social Security No-Match Letters
The U.S. Department of Homeland Security has
proposed new regulations pertaining to how employers must respond to “no-match”
letters from the Social Security Administration (SSA) or from DHS regarding
their employees. The proposed regulations provide “safe harbor” procedures for
employers who receive such letters. By taking the steps within the timeline
set, an employer would avoid prosecution for “knowingly” hiring illegal workers.
Under current immigration regulations, it is
unlawful to knowingly hire or continue to employ a person who is not authorized
to work in the U.S. Such knowledge can be actual or constructive (the
surrounding facts and circumstances should give rise to suspicions). The
proposed regulations would add two items to the list of examples that give rise
to constructive knowledge: 1) the receipt of a SSA no-match letter; or 2)
written notice from Homeland Security that in completing Form I-9 an employee
presented documentation that, according to its records, was not assigned to the
employee.
The new rules then provide a suggested
procedure that employers should follow when they receive such notices in order
not to be deemed to have constructive knowledge that an employee is an
unauthorized alien. This “safe-harbor” procedure includes attempting to resolve
the mismatch and, if it cannot be resolved within a certain period of time,
re-verifying the employee’s identity and employment authorization through a
specified process.
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Iowa Drug
Testing Law Must be followed to the Letter Court Says
In an opinion released in
mid August, the Iowa Supreme Court reiterated to employers
in the state that if they wish to test employees for drugs,
they must strictly follow the provisions of Iowa’s drug
testing law. The case involved an employee who tested
positive for marijuana and was fired but sued for wrongful
discharge, claiming she had not received a copy of the
employer’s drug testing policy as required by chapter 730.5
of the Iowa Code.
Background
Jeri McVey worked for
National Organization Service, Inc. (NOS). When she
reported for work on July 9, 2003, she was subjected to a
random drug test. It came back positive for the presence of
marijuana and her employment was terminated. She
subsequently filed suit against NOS alleging that the drug
test did not follow the statutory requirements for employee
drug testing and asked for reinstatement to her job and
damages.
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Violating USERRA Can
Be Costly
A Pepsi driver in Ohio was
awarded $84,000 in compensatory and punitive damages after a
federal court ruled that his employer denied him a pay
differential for time he spent in basic training after he
voluntarily enlisted into active duty. The Court found that
the denial of a benefit was “improper and willful” and
awarded the employee double compensatory damages ($33,926),
punitive damages ($50,000) and attorneys’ fees.
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Notice Requirements
for Employers under USERRA
The Uniformed Services
Employment and Reemployment Rights Act (USERRA) provides
certain employment and reemployment rights for members of
the uniformed services, including veterans and members of
the Reserve and National Guard, and prohibits employers from
discriminating against past and present members of the
uniformed services. Federal law requires employers to
notify employees of their rights under the USERRA.
The Veterans Benefits
Improvement Act of 2004 (VBIA) added the new notice
responsibility that requires employers to provide notice of
USERRA rights to persons entitled to such rights and
benefits. The text of the required notice under the VBIA
and further information can be obtained from
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EEO-1 and
VETS-100 Reports due September 30, 2006
The September 30, 2006, deadline for employers who are
required to file two federal reports – the EEO-1 Report and
the VETS-100 Report – is rapidly approaching.
The EEO-1 Report – formally known as the “Employer
Information Report” – is
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Approaching Deadlines for Human
Resource/Payroll Professionals
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Latest Department of Labor Numbers
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