The proposed safe harbor procedures for employers receiving “no match” letters from the Social Security Administration or the Dept. of Homeland Security have been criticized by an array of business associations, trade and other advocacy groups. Currently, the no match letters are issued when there are discrepancies between the employee’s name and social security number or work authorization. According to the U.S. Chamber of Commerce, the proposed rules would make employers liable for knowingly hiring undocumented immigrants if the discrepancy is not cleared up in 60 days. “[E]mployers should not be presumed guilty for what SSA readily admits could be a spelling error, name change due to marriage or divorce, or an incomplete W-2 form,” says the Chamber. The American Immigration Lawyers Association predicted that the rule change would promote discrimination and termination of lawful employment if verification did not come within the safe harbor time limits. The comment period for the proposed rules ended August 15.

The Equal Employment Opportunity Commission published proposed amendments to its rules due to a Supreme Court decision rejecting claims that favoritism toward older employees violated the Age Discrimination in Employment Act. Comments on the changes must be received by the EEOC by Oct. 10, 2006.

See whether a contemplated business practice would be considered illegal under federal law, and find other information, including an antitrust primer and frequently asked questions in the FTC publication.

The Reserve Officers Association posts questions and answers about the Uniformed Services Employment and Reemployment Rights Act application, eligibility, and other subjects concerning the employment or reinstatement of employees serving military duty. Check out the subject index for topics of interest if you have employees in the military.

A bill designed to protect personal genetic information from misuse by employers and insurance companies has been signed into law by President Bush. The Genetic Information Nondiscrimination Act of 2008 prohibits employers from using individuals' genetic information when making hiring, firing, job placement or promotion decisions, and makes it illegal for group health plans and health insurers to deny coverage to healthy individuals or charge them higher premiums based solely on a genetic predisposition to a disease. The new law also prohibits insurers from requiring genetic tests. Individuals who claim discrimination based on their genetic information must file an Equal Employment Opportunity Commission charge before proceeding to court.

The Dept. of Homeland Security has finalized and issued its rule requiring employers to terminate employees who can’t be verified as legal if there is a mismatch with their name and Social Security number—or face fines ranging from $250 to $10,000 per undocumented worker. The rule describes “safe harbor” procedures that the employer can follow in response to a no match letter; DHS assures employers who follow the procedures that it will not use the letter as any part of an allegation that the employer had constructive knowledge that the worker was an alien not authorized to work in the U.S.

A company which received a letter from the Social Security Administration indicating that 48 employees did not match the information in SSA’s database did not have just cause to terminate 33 of the workers when they did not timely comply with the company’s requirement to get new social security cards, the Ninth Circuit holds.

The Service Employees International Union had filed a grievance on behalf of the fired workers, contending the terminations breached the collective bargaining agreement. An arbitrator ruled for SEIU and awarded the fired workers back-pay and reinstatement, finding there was no convincing information that any of the fired workers were undocumented. A federal district court vacated the award, ruling that it violated public policy.

The Ninth Circuit says the case boils down to whether the company was put on constructive notice by the no-match letter, and the employee responses, that it was employing undocumented workers. If so, then the arbitrator’s award would force the company to violate federal law and would be properly vacated as against public policy, the Court says. However, the Court goes on to state that “an SSN discrepancy does not automatically mean that an employee is undocumented or lacks proper work authorization.”

“In addition to misuse by undocumented workers, SSN mismatches could generate a no-match letter for many reasons, including typographical errors, name changes, compound last names prevalent in immigrant communities, and inaccurate or incomplete employer records,” the Court says in reversing the district court and ordering it to confirm the arbitration decision. Aramark Facility Services v. SEIU Lo. 1877

To help employers figure out which federal recordkeeping, reporting, and notice requirements apply to them, the U.S. Dept. of Labor has incorporated a new elaws section in its FirstStep Employment Law Advisor. The addition is integrated into a suite of advisors that includes the revised and expanded FirstStep Poster Advisor. The Internet tool is intended to make it easier for small business employers to learn about and comply with applicable federal laws, according to Labor Secretary Elaine Chao.

A U.S. federal district court has issued a temporary restraining order against the implementation of the “no match” letter rule promulgated last month by the Dept. of Homeland Security. The rule requires employers to terminate employees who can’t be verified as legal if there is a mismatch with their name and Social Security number—or face fines ranging from $250 to $10,000 per undocumented worker. The order was sought by the AFL-CIO and the San Francisco Building and Construction Trades Council, among others. In its order, the court said “serious questions” were raised over whether the new rule was inconsistent with statute and beyond the statutory authority of both DHS and the Social Security Administration. The injunction covers the mailing of SSA’s no match letter packets to employers. A hearing on a preliminary injunction is scheduled for Oct. 1. AFL-CIO v. Michael Chertoff

By President Bush’s Executive Order, federal contractors must agree to use the Dept. of Homeland Security’s E-Verify system to verify the employment eligibility of their U.S. workers and those assigned to work on the federal contract in the U.S.

"Contractors that adopt rigorous employment eligibility confirmation policies are much less likely to face immigration enforcement actions, because they are less likely to employ unauthorized workers, and they are therefore generally more efficient and dependable procurement sources than contractors that do not employ the best available measures to verify the work eligibility of their workforce. It is the policy of the executive branch to use an electronic employment verification system because, among other reasons, it provides the best available means to confirm the identity and work eligibility of all employees that join the Federal workforce. Private employers that choose to contract with the Federal Government should meet the same standard,” says the Order.

In order to reduce mismatch rates for naturalized citizens, U.S. Citizenship and Immigration Services has incorporated improvements in its E-Verify Program. The program is a web-based system allowing participating employers to electronically verify the employment eligibility of newly-hired workers. The program occasionally produced mismatches between social security numbers and names, leading to potential termination of legally authorized workers.

According to USCIS, naturalized citizens who have not yet updated their records with the Social Security Administration are the largest category of work-authorized persons who initially face an SSA mismatch in E-Verify. The system will now include naturalization data to help instantly confirm the citizenship status of naturalized U.S. citizens. The agency also plans to initiate citizenship status records information sharing with SSA, and to check State Dept. passport records to further reduce mismatches and tentative nonconfirmations in employment eligibility.

The Dept. of Homeland Security proposes to clarify its regulations providing a “safe harbor” for employers who follow certain procedures after receiving notice from either the Social Security Administration or DHS that casts doubt on a worker’s employment eligibility.

DHS first published a proposed rule in June 2006 that would have required employers to follow up and resolve discrepancies after receiving a “no match letter” from SSA about mismatches in the name and social security number of a worker and what is contained in the SSA’s database, or after receiving a “notice of suspect document” from DHS. If the discrepancy was not resolved, employers would be required to terminate individuals or face liability for employing unauthorized aliens. The final rule was published in August 2007 setting out safe harbor procedures for employers, but the rule was enjoined by federal court at the request of union and employer groups.

The supplemental rules do not change the safe harbor procedures, but instead clarify the position DHS would take if employers receive a no match letter and follow up, or fail to follow up on it.

The Small Business Administration Office of Advocacy has notified the Dept. of Homeland Security that it supports the injunction halting the implementation of the DHS “no match letter” rule. The rule requires employers to follow up on letters received from the Social Security Administration indicating a discrepancy between an employee’s name and social security number, or face substantial fines.

The SBA says that under federal law, rules expected to have a significant economic impact on small businesses must do an assessment and consider less burdensome alternatives. Although DHS certified that the no match rule would not have a significant economic impact on companies, the SBA believes this was an error because the rule requires employers to take actions that they were not previously required to take. It offers to assist DHS in working to correct the problems with the no match rule.

A federal district court is allowing a lawsuit to proceed against an employer who fired a worker after he tested positive for nicotine, indicating he was a smoker. Although the company has a policy against employing smokers, the terminated worker says the enforcement of the policy constituted unlawful discrimination under the Employee Retirement Income Security Act. He claims that in discharging him because he was a smoker, the company interfered with the attainment of his right to participate in the employee benefit plan covered by ERISA.

The district court refused to dismiss his claim, indicating that the resolution of whether the employment action was taken with the specific intent of interfering with the employee’s ERISA benefit may depend on what facts are produced at trial. Rodrigues v. The Scotts Company LLC

The volume of wage and hour litigation continues to increase exponentially, and plaintiffs’ lawyers have continued to “push the envelope” in crafting damage theories to expand class action lawsuits and the scope of recoveries, says the national law firm Seyfarth Shaw LLP. Seyfarth Shaw recently issued its fourth Annual Workplace Class Action Litigation Report, analyzing the leading 2007 decisions involving claims against employers.

According to the firm, collective actions under the Fair Labor Standards Act produced more rulings in 2007 than did class actions for employment discrimination, or under the Employee Retirement Income Security Act. The report also finds that plaintiffs’ lawyers have resorted to state court forums on a more frequent basis to pursue employment-related class action litigation.