Know Your Rights: Recent Developments In Employment Law Have Far-Reaching Impact

Thursday, May 1, 2008 - 01:00

Over the last several months, there have been several important employment law developments. The following are general summaries of some of these developments. Readers are advised to contact employment counsel for a more comprehensive review of the topics discussed below.

New I-9 Form Required By USCIS

The United States Citizenship and Immigration Services ("USCIS") has updated its Form I-9 for verifying the identity and employment authorization of newly hired employees. The list of acceptable documents for use with the form has changed. The Department of Homeland Security has reported that it may begin seeking penalties against employers for using an earlier version of the form as of December 26, 2007. The new form can be found at www.uscis.gov/files/form/i-9.pdf. All employers should begin using this new form immediately.

FMLA Leave For Servicemembers And Their Families

On January 28, 2008, President Bush signed into law a defense spending bill that expands the Family and Medical Leave Act by providing up to 12 weeks of unpaid leave for an eligible employee whose immediate family member is on or called to active military duty because of a qualifying exigency (as determined by the Secretary of Labor). However, until the Secretary of Labor issues regulations defining "qualifying exigency," such provision of the amendment is not in effect. The amendment also provides eligible employees with up to 26 weeks leave (within a 52-week period) to care for wounded family members who have returned from active military service.

For leave due to a family member on or called to active duty, employers may request a certification from the employee, and the employee requesting leave is required to provide such notice to the employer as soon as is reasonable and practicable. For leave to care for a wounded family member, an employer may request a certification from the health care provider of the servicemember being cared for by the employee, and the employee requesting leave must provide 30 days' notice (if possible) or notice as soon as is practicable. As with other FMLA leaves, these new leaves may be unpaid, and the employer may require the employee to substitute accrued paid time off for unpaid leave.

Married To The Military

On October 9, 2007, with immediate effect, the California legislature enacted a spousal military leave law that requires a qualified employer to allow a qualified employee who is a spouse of a qualified member of the Armed Forces, National Guard, or Reserves to take up to 10 days of unpaid leave while their spouse is on leave from deployment during a period of military conflict.

Qualified employers are those that employ 25 or more employees. Qualified employees must (1) be the spouse of a servicemember, (2) work an average of at least 20 hours per week, (3) provide their employer with notice of leave within two business days of receiving notice that their spouse will be on leave from deployment, and (4) submit written documentation certifying that their spouse will be on leave from deployment during the requested employment leave.

In addition, effective June 12, 2008, the Washington State Military Family Leave law requires employers to provide unpaid leave of up to 15 days per deployment to an employee whose spouse is a member of the Armed Forces, National Guard, or Reserves who has been notified of an impending call or order to active duty, or who has been deployed, or when the military spouse is on leave from deployment.

In passing these new laws, California and Washington join several other states that provide similar leave rights to spouses of members of the Armed Forces, including Illinois, Indiana, Maine, Minnesota, Nebraska and New York.

New Jersey Expands Reach Of Its Law Against Discrimination

New Jersey recently amended its Law Against Discrimination by enhancing the prohibition against discrimination because of religious practices. With the amendment, the NJ Law Against Discrimination now provides that it shall be an unlawful employment practice for any employer to impose terms or conditions that would "require a person to violate or forego a sincerely held religious practice or religious observance" unless accommodating such practice or observance would create an undue hardship.

The law also prohibits employers from requiring employees to work during any day that the employee observes a Sabbath or other holy day as a requirement of his or her religion, unless such absence would impose an undue hardship. However, the employer may in such case require that the employee make up such absence at a mutually convenient time, charge such time to paid leave (other than sick time), or treat the absence as unpaid leave if not made up and the employee has no paid time off available.

In determining if a leave would constitute an undue hardship, the factors to be considered include (1) the cost, including the cost of loss of productivity and of retaining or hiring employees to cover the absence, in relation to the size of the employer, and (2) the number of individuals who will need the particular accommodation for a sincerely held religious observance or practice. In addition, a religious accommodation will be considered to constitute an undue hardship if it will result in the inability of an employee to perform the essential functions of the position in which he or she is employed.

Authorities Target Misclassified Independent Contractors

Employers often utilize independent contractors or "freelancers" without understanding the legal consequences of doing so. Employers who misclassify employees as independent contractors may be liable for back employment taxes, interest and penalties. The U.S. Department of Labor has named the misclassification of employees as independent contractors as one of its top enforcement priorities this year. In addition, on September 5, 2007, former New York Governor Eliot Spitzer established a Joint Enforcement Task Force on Employee Misclassification. This task force has coordinated efforts by interested governmental agencies, such as the Department of Labor, Workers' Compensation Board and Division of Taxation and Finance, and has launched numerous investigations and audits to identify offenders.

New Jersey legislators have also indicated their intent to increase enforcement in this area. In 2006, New Jersey Governor Jon Corzine launched an initiative to reduce the prevalence of misclassification of workers as independent contractors. More recently, New Jersey enacted the Construction Industry Independent Contractor Act, which makes it a criminal offense to misclassify workers in the construction industry as independent contractors rather than employees.

Minnesota Employers Must Inform New Hires Of Their Personnel File Rights

Effective January 1, 2008, Minnesota employers with 20 or more employees must provide written notice to job applicants upon hire of their rights and remedies under Minnesota law with regard to accessing their personnel records. In general, Minnesota law grants employees the right to review and dispute information in their personnel files, prohibits retaliation against employees for exercising their rights with regard to personnel records, and prescribes penalties for employers who fail to comply with the requirements. The statutes specifically permit employees to bring a civil lawsuit against their employers for violation of these laws.

Personnel records are defined as follows: any application for employment; wage or salary history; notices of commendation, warning, discipline, or termination; authorization for a deduction or withholding of pay; fringe benefit information; leave records; and employment history with the employer, including salary and compensation history, job titles, dates of promotions, transfers and other changes, attendance records, performance evaluations, and retirement records. The statutes, however, provide a list of exceptions including, but not limited to, written references, results of employer testing (other than a cumulative total score for a selection test), information relating to the employer's salary system and staff planning, written comments or data of a personal and private nature about a person other than the employee, any portion of a written or transcribed statement by a coworker of the employee that discloses the identity of the coworker by name or inference and medical reports and records.

The Minnesota personnel records laws are codified in Chapter 181 of the Minnesota Statutes, sections 960 - 965. The full text may be viewed at: http://ros.leg. mn/bin/getpub.php?pubtype=STAT_CHAP&year=2007&section=181.

Discrimination By Association

The Second Circuit Court of Appeals recently held, for the first time, that an employer may violate Title VII (the Federal anti-discrimination law) if it takes action against an employee because of the employee's association with a person of another race. In this case, a white assistant basketball coach alleged that he was fired because his wife is African-American. The court was therefore required to determine if the discrimination laws prohibited taking action against an employee not solely because of his own race, but as a result of his spouse's race. It concluded that such action would violate the law.

The Wrong Way To Conduct A Reduction In Force

A New York Federal Court recently held that a company had violated the Age Discrimination in Employment Act when it terminated an employee's employment as part of a reduction in force ("RIF"). The employer had argued that its need to cut costs and its belief that the employee was not performing to the company's expectations justified the termination. The court, however, noted, among other indicia of pretext, that 1) the employee had never received any written, negative feedback about his performance; 2) the company did not present any explanation as to why the plaintiff was chosen for the RIF as opposed to younger employees in similar positions; 3) 10 of the 16 employees included in the RIF were at least 48 years old, and 4) the company made a concerted effort to obtain negative feedback from the plaintiff's coworkers just prior to the RIF, apparently after it had already made the decision to include the plaintiff in the reduction. Accordingly, while terminating an employee in a RIF provides a layer of protection against a discrimination claim, employers must still have legitimate, non-discriminatory reasons for selecting each employee and must avoid pretextual reasons.

Keep That Smoke Away From The Doors

Effective January 1, 2008, the Smoke-Free Illinois Act not only prohibits smoking in virtually all public places and workplaces, it also prohibits smoking within 15 feet of any entrance to a public place or place of employment. The law further mandates that persons with control over such entrance areas remove ashtrays from the 15-foot no-smoking zone. In addition, "No Smoking" signs or the international "No Smoking" symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it, must be clearly and conspicuously posted at every entrance to each public place and place of employment.

These summaries are provided for informational purposes only and are not exhaustive. They should not be consideredlegal advice. Accordingly, you should consult an attorney with any questions regarding any of the issues referenced in this article.

Gregg Gilman is a Partner and Gregg Brochin is an Associate in the Employment Practice Group of Davis & Gilbert LLP.

Please email the authors at ggilman@dglaw.com or gbrochin@dglaw.com with questions regarding this article.