New I-9 Audits And A Dubious Fashion Statement

Holy smokes, Batman! Yesterday (November 19, 2009), the Department of Homeland Security’s Immigration and Customs Enforcement Division ("ICE") announced that I-9 audit notices would be delivered immediately to approximately 1,000 employers throughout the country. The audit notice is essentially a Subpoena and compliance is mandatory.

Almost immediately after the announcement (if not before it was even issued), I received a telephone call from a client stating that it had been chosen as one of the lucky 1,000 and that representatives from ICE in "sweatsuits" (that's right folks, you read it correctly ... "sweatsuits") delivered an audit notice that morning for the client's I-9 forms. Sweatsuits? Are you kidding me? Sheesh! The decline and fall of civilization as we know it continues.

New Federal Posting Requirements

Federal law requires postings in workplaces informing individuals of their rights under federal employment discrimination laws. The Equal Employment Opportunity Commission has published a notice revising its “Equal Employment Opportunity is the Law” poster to provide information concerning the Genetic Information Nondiscrimination Act of 2008 (“GINA”) as well as changes to other federal laws. GINA becomes effective on November 21, 2009, 18 months after its enactment.

GINA protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees or their family members; the manifestation of diseases or disorders in family members (e.g., family medical history); and requests for or receipt of genetic services by applicants, employees or their family members. It is suggested that employers may wish to update current handbook policies to incorporate language concerning GINA that is consistent with the new posting requirement. In addition, employers must comply with all other posting requirements mandated by federal and state laws. The new poster can be found at http://www.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf.

More Amendments To New York's Labor Law

Effective November 24, 2009, New York Labor Law Section 198 will impose an award of liquidated damages in a sum equal to 25% of any amount in underpaid wages found to be due after an administrative proceeding unless the employer can show a good faith basis for its belief that its underpayment was in compliance with the law. Liquidated damages will be available in a court action commenced by an employee under Labor Law Section 663 (as amended) to recover unpaid wages based on the same criterion. This is a wholesale reversal of the long-standing burden of proof by which liquidated damages were awarded only if the employee could establish that the employer’s underpayment of wages was willful. Will the automatic imposition of liquidated damages have a deterrent effect? Only time will tell; however, it will plainly increase the amount of damage awards.

Also effective on November 24, 2009 is an amendment to New York Labor Law Section 215 increasing monetary penalties against employers that have retaliated against employees who exercise their rights under the Labor Law. The new penalty range will increase to a minimum of $1,000 up to a maximum of $10,000. In addition to increasing the number of activities for which an employee may be subjected to retaliation, the amendment expands the universe of liability. Under prior law, only corporations could be held liable for retaliation; however, limited liability companies and partnerships will now be liable as well, with individual liability for their officers and agents.

Discrimination Based On Accent

Many discrimination cases involve characteristics such as race, sex, national origin and religion. Here’s one with a bit of a twist ... discrimination based upon accent.

In Morales v. HT Rest NYC LLC (NYS Supreme Court, N.Y. Co. - Decided 9/22/09), Plaintiff alleged that she was denied employment as a waitress based on her accent. Plaintiff further alleged that in rejecting her for the position, Defendant’s representative told her "You have a Latin accent," "You don't speak White," and "You are Ghetto." Defendant never alleged that the Plaintiff was unqualified to perform the duties of a waitress.

In denying Defendant’s motion to dismiss the Amended Complaint against the Defendant restaurant, the Court cited to precedent for the proposition that while a justified concern over language skills is not evidence of discrimination, comments about a person’s accent may be probative of discriminatory intent. The Court noted that “[a]n adverse employment decision may be predicated upon an individual's accent when — but only when — it interferes materially with job performance” [citation omitted].

In this case, the Court held that refusing to employ Plaintiff as a waitress because of a Latin accent (without more) could be discrimination based upon race or national origin. Although the Defendant contended that it did not hire Plaintiff based on the nature of its business and the manner in which she spoke (rather than her accent), the Court held that such contention was a factual issue to be determined at a later time.

The Morales case treads fine lines between an employer's legitimate business interest with respect to a person's ability to communicate clearly, an individual's accent (which may be incapable of alteration), and the manner of speech.

New Notice Obligations For New York Employers

Effective October 26, 2009, amendments to New York Labor Law Section 195 require employers to furnish written notification to all persons hired on and after that date of their regular rate of pay and regular pay day. The written notice to non-exempt employees (e.g., those who are eligible for overtime) must include a statement of the regular hourly rate as well as the actual overtime pay rate. Employers must obtain from each new hire a written acknowledgment/receipt of the required notice. Now, there's a nice, pre-Halloween present for you.

E-Verify Scheduled To Go Into Effect In Early September

The new E-Verify regulations are scheduled to become effective on September 8, 2009. On that date, federal contractors will be required to start using the internet-based, government sponsored E-Verify system to confirm electronically that an employee is eligible to work in the United States. Although the system is free and voluntary, federal contracts will be awarded only to employers who use E-Verify to check employee work authorization. So much for the "voluntary" aspect as a practical matter. The rule will only affect federal contractors who are awarded a new contract after September 8, 2009, and federal contractors may not utilize the system to verify current employees prior to its effective date.

The system will be operated by the Department of Homeland Security. Given the dubious nature of that agency in recent years, I would not be surprised if a number of glitches and inaccuracies appeared in the system. If so, confusion will likely run rampant. Only time will tell. However, should the E-Verify system prove effective ultimately, private employers may consider using it as well. Stay tuned.

Federal Minimum Wage Alert!

As I advised previously, the Federal Minimum Wage will increase from $6.55 per hour to $7.25 per hour, effective July 24, 2009. Typically, where a State minimum wage conflicts with the Federal minimum wage, employers are required to pay the higher of the two hourly wage rates. Employers confronting such a situation may wish to consult with labor counsel in their State.