The Amendment to Executive Order 12989 has government contractors and subcontractors scrambling to evaluate their legal obligations. Details remain sketchy, but the following information may help prepare a compliance strategy:

What is the Effective Date for Using E-Verify?

Employers have no immediate requirement to start using E-Verify. According to a SHRM news report, the deadline for federal contractors to sign up for E-Verify “still needs to be determined” and will be made public through the standard government regulation process, U.S. Citizen and Immigration Services (USCIS) Acting Director Jonathan Scharfen said, following his testimony June 10, 2008, on E-Verify before the House Immigration, Citizenship, Refugees, Border Security and International Law Committee. Once a deadline has been determined, E-Verify will be able to handle the roughly 200,000 contractors who will have to sign up or risk losing their federal contracts, he said.

Which Employers will be Covered?

The Amendment to E.O. 12989 requires E-Verify use for (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.The original E.O. 12989 set forth the parameters of the order by referencing the debarment provisions of the Federal Acquisition Regulations. Based on the combination of references it appears that the new E-Verify system will be applicable to the employees of all first tier contractors (and their affiliates) and the employees of sub-contractors working on the government contract. It is unclear whether E-Verify applies to existing contracts and/or existing employees.

Are there Alternatives to E-Verify?

An alternate program called New Employee Verification Act (NEVA) (H.R. 5515), has been introduced by Rep. Sam Johnson, R-Texas. NEVA would transform the current paper-based employment verification process by requiring employers to participate in one of two electronic employment verification systems. Employers would enroll through their state’s existing “new hire” reporting program which was originally designed to enhance child support enforcement. The new hire-reporting program is an electronic portal already used by 90 percent of U.S. employers. Commentators have noted “serious flaws” in this program too.

Have the Accuracy Issues with E-Verify been Resolved?

The DHS report “Debunking the E-Verify Error Rate” touting the accuracy of the E-verify System is based on 1000 queries conducted by an independent reviewer noted automatic confirmation of 942 (94.2%) of the sample queries. Five (.5%) of applicants were able to resolve the mismatch by correcting information with the Social Security Administration. The balance of 52 (5.2%) applicants could not be hired because of unconfirmed information. There is no analysis as to whether the rejected applicants where illegal workers or erroneous rejections.

GAO Report issued on June 10, 2008 entitled “E-Verification: Challenges Exist in the Implementing the Mandatory Electronic Employment Verification System” evaluates the accuracy of E-Verify as follows:

According to USCIS, under the current voluntary program the majority of E-Verify queries entered by employers–about 92 percent–confirm within seconds that the employee is authorized to work. About 7 percent of the queries cannot be immediately confirmed as work authorized by SSA, and about 1 percent cannot be immediately confirmed as work authorized by USCIS because the employee information queried through the program does not match information in SSA or DHS databases. With regard to SSA tentative nonconfirmations, USCIS and SSA officials told us that the majority of erroneous tentative nonconfirmations occur because employees’ citizenship or other information, such as name changes, is not up to date in the SSA database, generally because individuals have not contacted SSA to update their information when changes occurred.

Should a Contractor get a “Head Start” by signing up for E-Verify in Advance of the Effective Date?

A wait and see approach may still be the best play as the uncertainties of the effective date and coverage are resolved by regulations. In any event, employers should carefully considered a compliance strategy based on yet unresolved contingencies:

  • Scope of Operations covered by E-Verify
  • Whether Verification applies to existing employees or just new hires
  • Effect on Hiring and Retention of Workforce
  • Centralization of Hiring Process
  • Communication with No-Match Employees and/or Applicants
  • Assistance to Employees in correcting No-Match
  • Appreciating the Scope of the No-Match Safeharbor and IRCA’s Anti-discrimination protections

Governor Edward G. Rendell signed into law the Clean Indoor Air Act, announcing that the Act “will protect Pennsylvanians from the deadly health effects of secondhand smoke by prohibiting smoking in most public places, including restaurants, workplaces and a portion of casino floors.” The new law is effective September 12, 2008.

The Act covers the indoor areas of all “workplaces” which includes all places of employment and those where volunteer activity is conducted. It seems the all too familiar outdoor smoking areas at workplaces survived the Act’s prohibitions, unless the owner of the public place prohibits smoking on the entire property (indoor and outdoor), which is expressly allowed under the legislation. Signage is required designating both smoking and nonsmoking areas.

The Act contains exemptions to smoking prohibitions for rooms within lodging establishments, tobacco sellers and manufacturers, long-term care facilities, private clubs, and drinking establishments. The Act does not expressly address issues created when an exempt area is also a workplace, although a common sense reading would allow smoking in exempt areas even if work were performed there. Perhaps the Department of Health will clarify this technical inconsistency. The Act has anti-retaliation provisions that state “a person may not discharge an employee, refuse to hire and applicant for employment or retaliate against an employee because that individual exercises a right to a smoke-free environment required under this act.” 

Penalties for violations of the act range from $250 for the first offense escalating to $1000 for subsequent offenses. An affirmative defense is provided for good faith efforts to prohibit smoking. Employers must comply with the Act by posting a sign containing the international no smoking symbol and enforcing no smoking policies including relegating smoking activities to designated outdoor areas.

UPDATES: Pennsylvania Workplaces Must be Smoke-free by September 11, 2008 (includes action steps for compliance with the law;  Department of Health Issues Guidance for Employer Compliance with the Pennsylvania Clean Indoor Air Act

The scenario is a common one. An employee quits or is discharged before the end of the pay period. The employer has the employee’s final paycheck, and the employee has certain property belonging to the employer (e.g., a uniform, laptop computer, cell phone). The employer explains to the employee that it will give the employee his/her final paycheck as soon as the employee returns the employer’s property.

In Pennsylvania, the employer’s proposed swap of paycheck for property may run afoul of the law. The Pennsylvania Wage Payment and Collection Law expressly states that whenever an employee is separated from employment, the wages or compensation earned "shall become due and payable not later than the next regular payday of his employer on which such wages would otherwise be due and payable." 

Simply put, a employer in Pennsylvania cannot use the final paycheck as leverage to recover its property, even if it is not disputed that the employer is legally entitled to the property. Holding the final paycheck exposes an employer to potential liquidated damages and liability for the employee’s attorney fees, in addition to the value of the withheld wages.

Employers essentially have two options (neither of which are ideal) when giving employees property for their use that the employer wants returned at the end of the employment relationship. In the first option, the employer can get written authorization from the employee to deduct the cost of any unreturned equipment from the employee’s final paycheck. This option, however, presents some risk. The Wage Payment and Collection Law allows deductions from the paycheck with the employee’s written authorization if the deduction is "for the convenience of the employe[e]." It is unclear whether deducting the cost of an unreturned laptop from an employee’s final paycheck is a deduction "for the convenience of the employee" and thus permissible. In addition, the final paycheck itself may be insufficient to cover the cost of the unreturned property. This problem is made worse by the fact that the deduction should not take an employee’s wages during the final pay period below the statutory minimum wage.

The second option is to pursue legal action against the employee for the cost of the unreturned property. In many cases, such legal action would be in the form of a civil action filed with a District Justice. In many circumstances, an employer spends time and resources pursuing the property in such a legal action well in excess of the value of the property itself.

There exists no perfect solution to the problem of employees failing to return an employer’s property upon separation of employment. Despite the lack of good solutions, holding the final paycheck as leverage is not a permissible option and may result in additional liability.

The act of getting coffee is not a gender specific act that can form the basis for a sexual harassment claim according to a recent court decision in Klopfenstein v. National Sales and Supply. The plaintiff had asserted that being compelled to perform what she considered to be a ‘servile task’ was, in and of itself, gender discrimination and gender based harassment so clearly stereotypical as to not specifically require comparator evidence. In essence, the plaintiff was contending that asking a female employee, regardless of the position that she held, to get coffee for her boss was per se because of her gender. Keep in mind that the plaintiff was a receptionist who did not object to getting coffee and refreshments for clients and vendors.

Despite the absence of any contention that she was subject to sexual advances, the plaintiff also sought to characterize her being required to get coffee as what she called “quasi quid pro” harassment.   Rather than being required to submit to a sexual advance, the gravamen of a quid pro quo theory, the plaintiff contended that she was required to conform to an outdated gender stereotype. This theory also rejected.

Finally, the plaintiff sought an expansive interpretation of what may constitute adverse action sufficient to support a claim of retaliation. After being advised that she would be discharged and paid for the rest of her last day, the plaintiff implored her employer to work through the end of the day. When she subsequently indicated that she might file a complaint, she was told to leave but still was paid for the rest of the day. The court noted that this could not constitute materially adverse action by the employer that might well dissuade a reasonable person from making a complaint. If anything, the Court noted, such a worker’s resilience in pursuing a charge or complaint “would likely be emboldened”

The court granted the employer’s motion for summary judgment ruling that a female receptionist/data entry clerk could not make out a prima facie case for retaliation, sexual harassment or gender discrimination. National Sales and Supply was represented by Brian F. Jackson and Marcy L. McCullough of McNees Wallace & Nurick LLC.

Companies face increased energy cost as the nation’s average gasoline price reached $4.00 per gallon this week spurring a new round of cost cutting measures. Even in prior years, some employers have allowed employees to work alternate workweek schedules, such as four 10 hour days, for summer months. When this schedule is feasible from a production and service perspective, the benefits typically can be two-fold: reduced operational costs for the employer and longer weekends for employees.

As featured recently on the TODAY SHOW, many employers are considering changes to their workweeks as a means of cutting employee commuting expenses and reducing business operational costs. Changes in workweeks can raise legal issues for employers as follows:

  • Overtime. Under the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act, non-exempt employees must be paid for all hours worked in excess of 40 in a workweek. Nevertheless, employers in some industries may have a practice of paying ‘daily overtime’ for work in excess of 8 hours per day. This must be considered in assessing the value of any alternative workweek.  
  • Child Labor Limitations. State laws limit the number of hours that children may work in a day and week depending on the age of the child. Pennsylvania limits the hours of work in a day for children under the age of 18 who are covered by its child labor laws.
  • Unemployment Compensation. Employees who quit because of a change in their hours or schedule generally are not eligible for unemployment compensation. A change from a day day workweek to a four day work week, without any loss of hours, is not likely to be viewed as a ‘substantial change’ that might provide necessitous and compelling reason for someone to quit their employment and receive benefits. 
  • Collective Bargaining.  Absent a clear provisions in a CBA delegating such discretion to the employer, a change in the hours of work would be a mandatory subject of bargaining. As such, most unionized employers would be required to obtain the Union’s assent prior to adopting a "four-10’s" type work week. This may also require addressing and resolving contractual issues involving shift differentials, premium pay and daily overtime in the context of a side letter agreement.

We previously discussed telework as a strategy for addressing similar employee relations issues in our post "Legal Issues in Telecommuting:  Gas Prices make Businesses Reconsider Policies."

On June 6, 2008, President Bush amended Executive Order 12989 to require that all federal contractors verify the legal status of their employees by using the government’s electronic employment verification system or face sanctions including debarment from future contracts:

Executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.

DHS has designated E-Verify as the employment eligibility verification system for all federal contractors and touted its effectiveness:

More than 69,000 employers currently rely on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in fiscal year 2008. Of those queries, 99.5 percent of qualified employees are cleared automatically by E-Verify.

Commentators have questioned the accuracy and capacity of the E-Verify system. Michael Aitken, SHRM Government Affairs Director has said, “ mandating participation in a system that doesn’t really work won’t give employers the tools they need to ensure a legal workforce.” DHS has responded publicly in its release “Debunking the E-Verify Capacity Problem.” I have suggested taking a Wait and See Approach to E-Verify. However, the wait is over for government contractors who will soon see how the system fairs. Bush’s Order has no clear effective date, but appears to be prospectively applicable to new or renewed government contracts.

The U.S. Supreme Court’s Federal Express v. Holowecki decision lowered the bar on what qualifies as a “charge” for purposes of an employee satisfying the procedural prerequisites for getting into court on a federal discrimination claim. Commentators, like Jon Hyman at the Ohio Employer’s Blog, have criticized Holowecki as unfair to employers:

My problem with this ruling is that Fed Ex never had any meaningful way to respond to the Intake Questionnaire. That form was never sent to it, and it had no notice that a proceeding had even been initiated until after the actual charge was filed 6 months hence. Thus, an employee can proceed to federal court on an age discrimination class action lawsuit, without the employer, who had no notice that a charge had even been filed with the EEOC, having the benefit of trying to settle the claim pre-lawsuit. During the EEOC’s conciliation process, the stakes are decidedly much lower than they are once an actual lawsuit is filed. For one thing, claimants usually are not represented by counsel at the EEOC. The same is rarely true in federal court. This decision prejudices employers who will be denied any opportunity to resolve a case via the EEOC’s informal conciliation process.

The Supreme Court’s decision noted this unfairness and suggests that staying the court proceedings to allow conciliation and settlement might mitigate it:

The employer’s interests, in particular, were given short shrift, for it was not notified of [employee’s] complaint until she filed suit. The court that hears the merits of this litigation can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. True, that remedy would be imperfect….

In Holender v. Mutual Industries North, Inc., the Third Circuit cited the Supreme Court’s language and remanded a case involving a technically deficient charge of discrimination to the district court that granted summary judgment with a footnote instruction to “entertain a motion under Holowecki to stay the proceedings while the parties try to settle this matter.”  Although the Third Circuit is merely following a directive from the high court, staying the proceedings doesn’t address the problems created for an employer and is a waste of time for the following reasons:

  • The damage to an employer’s case is already done by belated notice of the employee’s discrimination claim. Documents have not been preserved and witnesses may be unavailable because the employer wasn’t notified within the 300-day limitations period for filing a charge. Notice failures could add years to the limitations period.
  • The EEOC’s conciliation process is predicated on the agency’s “expertise” in addressing employment claims and benefits from informality. This point was noted by the Court in its comment that “[o]nce the adversary process has begun a dispute may be in a more rigid cast that if conciliation had been attempted at the outset.”
  • The federal court process has ample settlement opportunities without staying the proceedings.

Employers sometimes pay bonuses to nonexempt employees without a thought of potential wage and hour compliance. Ann Bares at Compensation Force notes that Companies may pay a “lump sum” merit increase for employees who are topped out of a salary range. Other examples of lump sum payments include attendance and production bonuses, year-end bonuses and holiday gifts.  Bonuses and other lump sum payments may be included in a nonexempt employee’s regular rate depending upon the manner in which the bonus is calculated and the company’s prior communication. Inclusion in the regular rate impacts overtime calculations and payments.

Bonuses paid to nonexempt employees are included in the determination of the employees’ regular rate under section 778.208 unless the bonus falls into one of several exceptions. The bonuses are allocated to the pay period and added to other wages paid to nonexempt employees and then divided by the hours worked for the same period to determine the new regular rate under the methodology described in section 778.209. For bonuses earned over more than one workweek, the bonus must be allocated to pay periods to which the bonus applies and the regular rate recalculated. If overtime was worked during this period, the overtime rate must be revised to be time and a half the recalculated regular rate that includes the bonus payment. This is a nightmare.

Department of Labor regulations provide for several exclusions. Among these excludable bonus payments are discretionary bonuses, gifts and payments in the nature of gifts on special occasions, contributions by the employer to certain welfare plans and payments made by the employer pursuant to certain profit-sharing, thrift and savings plans. These exemptions are discussed in Section 778.211 Discretionary Bonuses, Section 778.212 Gifts and Holiday Bonuses, Section 778.213 Qualified Profit Sharing and Savings Plans, and Section  778.214 Other Qualified Plans.  Bonuses, which do not qualify for exclusion from the regular rate as one of these types, must be totaled in with other earnings to determine the regular rate on which overtime pay must be based.

Typically, any bonus announced in advance and tied to work performance, hours or other productivity will not qualify for an exemption.  There three ways to manage the recalculation problem, other than utilizing qualified plans:

1.            Percentage Total Earnings Bonus: Bonuses based on a percentage of the nonexempt employee’s total earnings under section 778.210 do not result in a recalculation of the regular rate because overtime is already been accounted for in the calculation. Under this method, the bonus is described as a percentage of the nonexempt employee’s total (W-2) earnings, thereby including both regular and overtime payments and obviating the need for recalculation of the regular rate.

2.            Discretionary Bonuses: This is an area of DOL audit scrutiny and should not be used on a regular or aggressive basis. Truly discretionary bonuses are not included in the regular rate of pay under section 778.211, if both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly. The following sets forth some of the parameters of the exclusion:

For example, any bonus which is promised to employees upon hiring or which is the result of collective bargaining would not be excluded from the regular rate under this provision of the Act. Bonuses which are announced to employees to induce them to work more steadily or more rapidly or more efficiently or to remain with the firm are regarded as part of the regular rate of pay. Attendance bonuses, individual or group production bonuses, bonuses for quality and accuracy of work, bonuses contingent upon the employee’s continuing in employment until the time the payment is to be made and the like are in this category. They must be included in the regular rate of pay.

3.            Holiday Bonuses: The Holiday Gift and Bonus exemption under section 778.212 allows for the exclusion from calculation of an employees “regular rate” of pay “sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent upon hours worked, production, or efficiency….” The following sets forth some of the parameters of the exclusion:

If the bonus paid at Christmas or on other special occasion is a gift or in the nature of a gift, it may be excluded from the regular rate under section 7(e)(1) even though it is paid with regularity so that the employees are led to expect it and even though the amounts paid to different employees or groups of employees vary with the amount of the salary or regular hourly rate of such employees or according to their length of service with the firm so long as the amounts are not measured  by or directly dependent upon hours worked, production, or efficiency. A Christmas bonus paid (not pursuant to contract) in the amount of two weeks’ salary to all employees and an equal additional amount for each 5 years of service with the firm, for example, would be excludable from the regular rate under this category.

A company’s termination of a female worker’s employment for missing work in violation of an attendance policy is illegal discrimination if the termination decision is sufficiently related to the woman’s exercise of her right to an abortion. On May 30, 2008, the Third Circuit Court of Appeals issued its decision in Jane Doe v. C.A.R.S. Protection Plus, Inc., and held that:

Clearly, the plain language of the [Pregnancy Discrimination Act], together with the legislative history, and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion. We now hold that the [PDA’s] term “related medical conditions” includes an abortion.

The Third Circuit reversed a district court’s decision, which granted summary judgment in favor of a company that operated a business insuring used cars. The Third Circuit found that there were issues of fact that must be resolved by a jury, not a judge. 

The decision also noted the following items unique to a pregnancy discrimination case:

  • There are three elements to a prima facie case of pregnancy discrimination to be proven by an employee:
    • She is or was pregnant and her employer knew she was pregnant
    • She was qualified for her job;
    • She suffered an adverse employment action; and
    • A nexus exists between the pregnancy and the adverse employment action that suggests unlawful discrimination.

The legal analysis for pregnancy discrimination claims follows the rubric set forth for Title VII discrimination claims. Set forth below is a brief overview of the analysis as discussed in Jane Doe v. C.A.R.S. Protection Plus, Inc.

Employee’s Prima Facie Case:

  • A nexus can be demonstrated by showing that the pregnant employee was treated less favorably that similarly situated non-pregnant employees. Anemployer’s more favorable treatment of temporarily disabled non-pregnant workers raises an inference of discrimination.
  • A discriminatory motive can be demonstrated by remarks by a company decision maker critical of pregnancy or abortion and by the temporal proximity between the abortion and the employee’s separation from employment.

Employer’s Burden of Production:

  • An employer may defend a discrimination claim by producinga legitimate nondiscriminatory business reason for an employee’s termination. For example, in Jane Doe v. C.A.R.S. Protection Plus, Inc., the employer’s justification for the employee’s termination was job abandonment for failing to call in under its absenteeism policy. 

Employee’s Burden to Prove Pretext:

  • The employee must then show the justification is a mere pretext for discrimination by evidence that either casts doubt upon the employer’s reason as fabricated or shows that discrimination was the employer’s true motivation. The evidence of record in Jane Doe v. C.A.R.S. Protection Plus, Inc., created a material issue of fact regarding whether C.A.R.S.’s legitimate nondiscriminatory reason was pretextual.

Social views aside, it appears that in the Third Circuit an abortion is now a recognized activity, covered under the PDA, for which an employee cannot be treated differently in the terms and conditions of her employment. Irrespective of an employer’s social views, employers must now recognize the differing treatment of employees who have undergone an abortion presents the possibility for claims under the PDA, and most likely the Pennsylvania Human Relations Act.

Self-insured medical plans typically contain “subrogation clauses” that allow the plan to claim reimbursement from a personal injury recovery of a participant. The self-insured plan’s reimbursement right exists even if state laws prohibit such attachment as ERISA pre-empts the state limitation. For example, the Supreme Court ruled that ERISA trumped Pennsylvania’s anti-subrogation law allowing a self-insured plan to recoup payments it made for medical expenses from an injured participant’s tort recovery.

Recently in its decision in Sereboff v. Mid Atlantic Medical Services, Inc., the U.S. Supreme Court unanimously affirmed a self-insured health plan’s legal right of reimbursement from a participant’s personal injury recovery. Enforcement of this right requires that the plan sponsor include reimbursement language in both its plan document and summary plan description. Specifically, well-drafted documents should address the following:

  • Identifying the individuals covered by the reimbursement right in addition to the participant (e.g., dependents, heirs, etc.). 
  • Specifically reference the right of subrogation and reimbursement.
  • Specifically reject common law doctrines such as the "make whole" and "common fund" doctrines.
  • State that the plan has a first priority equitable lien with respect to any proceeds (from any source) that will be held in a "constructive trust" for the benefit of the plan and that the participant consents to both the lien and the constructive trust.
  • Require participant cooperation with respect to the plan’s ability to enforce its rights, including requiring participants to execute subrogation and reimbursement agreements as a condition to receiving benefits.
  • Specifically reference the plan’s right to offset future benefits to the participant.

Properly drafted (and consistent) language in plan documents and summary plan descriptions will serve to thwart any efforts to block the enforcement of a self-insured plan’s reimbursement rights. However, a medical plan’s action in seeking reimbursement from an employee or dependent may not be without other repercussions.

Substantial adverse publicity and damage to employee relations could result when medical plans seek to recoup payments from accident victims. Consider the media firestorm that rained down on Wal-Mart after it tried to recoup $470,000 in medical reimbursements from a $1 million tort recovery of an injured employee. Wal-Mart’s was tarred with the title of “Worst Person in the World” from one media pundit. Ultimately, the Wal-Mart plan relented allowing a brain-damaged former employee to keep the money, even though Wal-Mart probably had a clear legal right to reimbursement.