Immigration and Customs Enforcement (ICE) just provided employers with some troubling guidance on the pre-population of the employee information (Section 1) portion of the I-9 form. Employers with robust human resources systems that integrate the I-9 form into the mix may have reason to be concerned about this problematic new guidance.  

According to ICE, the pre-population of Section 1 is not acceptable under any circumstance. The ICE position is that the employee must complete Section 1 of the I-9 form themselves. The notion that the data placed into Section 1 originates from employee provided data carries no weight with ICE. The ICE view is that any pre-population of the I-9 form based on data input into a human resources system is unacceptable. 

Employers that continue to utilize this practice may find themselves at significant risk should ICE conduct an audit of the employer's I-9 process. This change in position is a fairly dramatic shift in ICE's position on this employer practice. It also seems to be a bit of a drastic change, considering the employee is reviewing and signing the data placed into Section 1. One can only hope ICE changes direction on this decision.

State legislatures continue to debate and pass laws restricting employer behaviors with respect to the access to employee/applicant social media accounts. 

At the present time, six states (CA, IL, MI, MD, NM, and UT)  have passed legislation on this topic and there will likely be others in time. The primary focus of the legislation to date has been to prohibit employers from requiring candidates/employees to provide passwords and access to private accounts. Most of the state efforts have not tried to prevent employers from reviewing publicly available items published via social media. 

This trend is likely to continue and employers with multi-state operations should be paying attention to these developing statutory enactments. Furthermore, even if you are in a state that doesn't prohibit you from requiring employees to show you private social media areas, you might consider whether you truly want to engage in that type of behavior. There is a pretty strong element of it just not feeling right. Those are the types of feelings jurors and other fact finders are likely to have as well. In addition, who knows what those private pages/areas are going to teach you. There are plenty of facts that you don't really want to know when considering a candidate/employee and their future with your company.

If you’ve ever interviewed job applicants, you’ve probably encountered some of the usual suspects. The improperly dressed candidate with bad hygiene. The guy who got in the door by “embellishing” his resume but obviously is unqualified. The gal who shows up 45 minutes late stressed out and disheveled. And, at the other end of the spectrum, the overenthusiastic applicant who interjects your first name into every single sentence during the interview. 

• Candidate denied having a cell phone with him . . . even though it was ringing in his briefcase.
• Candidate asked to be paid “under the table.”
• Candidate called his wife during the interview to ask what they were having for dinner.
• Candidate said he would do whatever it takes to get the job done, legal or not.
• Candidate said he didn’t want the job if he had to work a lot.
• And, at the top of my list, the candidate who called in sick to her current employer, faking an illness, during the interview.

The new government fiscal year started on October 1st which means it is time to begin preparing and filing J-1 visa waiver applications for physicians under the Conrad 30 program.  The program is used by medical employers (hospitals, clinics, practice groups, etc.) to hire foreign physicians to work in medical provider shortage areas (HPSA or MUA) or outside of shortage areas but providing care to residents within shortage areas.  The program provides Kansas employers with a great tool to recruit physicians to these shortage areas.  For more information click here.

Most of you know by now that social media websites can be dangerous in the employment context. Apparently, one of the NFL's replacement referees failed to get that memo. Over the weekend, the NFL was forced to replace a referee on a crew after learning of his posts on Facebook highlighting that he was a New Orleans Saints fan. Apparently the postings included photos of the referee in his Saints jersey at a tailgate party. The bad news for the NFL is that this referee was assigned to call the Saints game on Sunday. Nothing like being placed in a position to officiate your team's game. As of today, the NFL has not terminated the referee for this potential bias. Hopefully, the NFL is smart enough to realize this conflict of interest goes beyond just a game involving the Saints, as his decisions in another game could easily benefit the Saints. I would assume the NFL will piece all this together and take appropriate action. Stay tuned to see if this social media dust up includes some further employment action and whether that action leads to some other legal process. 

Regular readers of this blog may have noticed that there has not been a lot of Kansas-specific content lately. No, we haven't forgotten that this is the Kansas Employment Law Blog. But when the legislature is not in session, and the Kansas Supreme Court and Kansas Court of Appeals are not cranking out decisions in employment-related cases, there simply are not a lot of state-specific new developments to talk about. And most employment law and employee benefits issues are, by their nature, federal in scope. So we've been feeding you a steady diet of federal law developments, practical advice based on general employment law principles, and my musings on pop culture, statistics, and wacky cases (all with an employment law nexus, however strained). 

To provide more Kansas content, we are starting a new, semi-regular feature called Do You Know? These articles will discuss various contours of Kansas employment law that are often overlooked or misunderstood.  We'll start with the Kansas Wage Payment Act's notification requirements. 

Do you know that upon an employee's request, a Kansas employer must furnish the following information in writing:

• Rate of pay and date and place of payment;
• Any changes in rate of pay or date and place of payment prior to the date of such changes;
• Employment practices and policies regarding vacation pay, sick pay, and any other benefits to which the employee is entitled and that have a direct bearing upon wages payable; and
• An itemized statement of deductions made from the employee's wages for each pay period deductions are made?

In some states, like California and New York, employers are required to provide      Continue Reading...

The use of pre-employment testing by employers has become more common in recent times. In most cases, the testing is conducted by outside vendors offering these types of services to multiple groups of employers. While these tests seem to be a good idea to most employers, it is important to make sure they pass muster with the various administrative agencies at the federal and state level.

In a recent example of a test gone wrong, the OFCCP took issue with an employer's written testing program. The test had an adverse impact on minority applicants and failed to meet the EEOC's Uniform Guidelines on Employee Selection Procedures.  In this recent case, the OFCCP reached a $550,000 settlement with the employer. Click here for the OFCCP press release.

While having the OFCCP involved might suggest this is only an issue for written tests and government contractors, don't be misled. This is only an OFCCP issue because the problem was uncovered by an OFCCP audit of the employer. The EEOC's requirements in this area apply to all employers. In addition, the selection guidelines apply to all types of pre-employment testing, ranging from written testing to skills testing to strength-and-agility testing.

If your company conducts these types of tests, it is important to ensure there is not an adverse impact on a specific class of individuals. If there is an adverse impact, the employer can still defend the testing measure if the employer can show the test is an accurate predictor of a candidate's ability to perform a job. This is where      Continue Reading...

One of the more confusing work authorization scenarios I see clients dealing with relates to when a foreign student is authorized to work in the United States.  The default rule is that a student in the U.S. with an F visa (the typical one used by students) is not permitted to work.  Students typically gain the ability to work in limited ways.  A student may gain work authorization via a curricular practical training program (CPT) or via an optional practical training program (OPT).  These programs differ quite a bit.  A student working via CPT will have the ability to work for a limited period of time and for a specific employer as part of a school sponsored training program.  A student working via OPT will have an employment authorization document (EAD) which will allow a much longer period of employment with no specific employer restrictions.  If your company employs a foreign student, make sure you carefully evaluate whether the individual has proper work authorization documents to work for your company and ensure you carefully note the expiration of that work authorization.   

About a month from now high school seniors will be donning funny looking caps and gowns and parading across stages to receive their hard-earned diplomas.  But employers who require a high school diploma or GED as a condition of employment need to make sure this requirement is job-related and consistent with business necessity, and that it doesn't screen out individuals who cannot obtain a diploma because of a learning disability.         

The Equal Employment Opportunity Commission recently published new guidance on whether an employer's requirement that a job applicant have a high school diploma may violate the Americans with Disabilities Act.  The guidance is in response to an informal discussion letter issued by the EEOC last November that created significant commentary and conjecture. 

The guidance explains that requiring a high school diploma for a position is not illegal.  Employers may continue to have high school diploma requirements and, in the vast majority of cases, they will not have to make exceptions to them. However, according to the EEOC, if an applicant tells an employer she cannot meet this requirement because of a disability, an employer may have to allow her to demonstrate the ability to do the job in some other way. This may include considering work experience in the same or similar jobs, or allowing her to demonstrate performance of the job’s essential functions.

The guidance clarifies that the ADA only protects someone whose disability makes it impossible for him to get a diploma. It would not protect someone who simply decided not to get a high school diploma.  The employer can require      Continue Reading...

As most of you are probably aware, social media policies and practices established by employers have been the focus of the National Labor Relations Board (NLRB).  It seems, though, that some employer interview and hiring practices have drawn quite a bit of negative attention as of late from the mainstream media and various politicians across the country.  At the end of March a series of news media stories received national attention (and some news talk show debate airtime).  These stories were focused on employers requiring applicants to provide them with their social media login/password information so the interviewer could review the applicant's non-public profile information.  Another twist of the same general concept is for the applicant to be required to log in and allow the interviewer the opportunity to review that private information on the spot.

While not illegal as of yet, this tactic takes the review of an applicant's social media presence to a whole new level.  There are a number of risks associated with reviewing social media sites (even if the information is public) as part of the hiring process.  Employers may uncover information as part of the social media inquiry that it doesn't really want to know or consider in the hiring process.  Taking this inquiry to the level of requiring an applicant to open up private information to the interviewer adds on a layer of additional risk.  Each employer has to balance the risks of reviewing the social media information with the value of the information and its relevance to      Continue Reading...

So first off, there is almost no connection between the love we might express on Valentine's Day and I-9 forms.  If any of you say I-9 form and love in the same breath, your sanity will surely be questioned; however, if we talk about throwing out old I-9 forms, we might be able to insert I-9 and love into the same sentence.  If you are not destroying I-9 forms for former employees, it is time to consider your I-9 retention practices.

As all of you know, employers are required to complete and maintain I-9 forms and supporting documents for each employee.  In conducting audits and visiting with HR teams, the issue of maintaining (retaining I-9 forms) is an area where employers tend to err.  It seems that a lot of employers maintain I-9 forms forever when there is no requirement to do so.  The I-9 retention rules are fairly straight forward.  An employer is required to retain an I-9 form for any current employee.  Employers are also required to maintain I-9 forms for a minimum of three years.  Once the employee terminates employment with the company, the I-9 must be retained for at least one year following termination.  While a little convoluted, the rule is fairly simple.  The I-9 must be retained for at least three years and for at least one year following an employee's termination of employment.  Here are a couple of examples to help clarify:

Employee 1 starts work on August 1, 2007 and remains employed today.  Since the employee is a current employee we continue to retain the      Continue Reading...

Are Rockstars and Ninjas running rampant in your workplace? More and more companies are dumping their mundane old job titles for creative new monikers like these, according to an analysis of business card trends.    

The most-popular new names include Ninja, Rockstar, Geek, Guru, and Wrangler. These and other inventive job titles, like Czar, Kahuna, and Mad Scientist, let workers bring some personality and fun to their jobs.  The trend started with technology companies and is gaining traction in a wide range of industries. But don't expect the demise of traditional job titles at most companies.

From the perspective of an Employment Law Guru (hey, that sounds kind of cool), there's nothing inherently wrong with colorful job titles, if that approach is compatible with your company culture and customer base. It might even give you a leg up in recruiting for competitive creative or technology jobs. 

But use common sense and don't get carried away. Job titles (formal or informal) that convey sexist, racist, or religious overtones should be avoided. So no Wenches, Popes, or Nazis (remember the Soup Nazi from Seinfeld?). Even titles like Ninja or Kahuna could be problematic if directed at specific employees because of their race, ancestry, or national origin. Also stay clear of offensive business cards, such as the ones ordered by Facebook founder Mark Zuckerberg early in his career, which read, "I'm CEO, bitch." As any HR Rockstar knows, what some employees find clever or funny can be offensive to others.

The USCIS announced that the H-1B cap for fiscal year 2012 was reached last week.  This means no more H-1B visas will be available for employer use until October 1, 2012, when fiscal year 2013 visas become available.  The filing period for the 2013 fiscal year H-1B  visas will begin on April 1, 2012.  In the meantime, employers that had been considering the use of an H-1B visa should begin evaluating other immigration options.

These numbers may signal a rebound in hiring of the professional employees this visa category represents.  Last year the H-1B cap was not reached at the end of January.  This upswing in hiring of H-1B visa candidates is a heads up to those planning to hire H-1B candidates next year.  If your company has a need to hire H-1B candidates, it is advisable to be prepared to take action on those hiring plans with an H-1B application filing in April 2012.  Prior to the economic downturn, the norm was for all H-1B slots for a fiscal year to be allotted during the initial wave of filings in April.  We may be returning to that type of environment for H-1B visa applications.    

For the text of the USCIS press release click here.   

Jim Mann, recently hired as chief information technology officer for the Kansas executive branch, resigned earlier this week.  Mann stepped down a day after questions arose about his academic degree, and hours after Governor Brownback acknowledged that his staff had not thoroughly vetted Mann's educational background.  Mann's on-line resume says he holds a bachelor's of business administration degree from the University of Devonshire.  But this institution is not accredited and in fact has no degree-granting authority.  In other words, it's what some might call a "diploma mill."

High-profile cases like this are old hat.  It's been ten years since Notre Dame hired George O'Leary to be its new head football coach--and then fired him five days later when a reporter discovered he had lied on his resume about obtaining a master's degree from a non-existent university and earning football letters at a school where he was never even on the team.  Six years ago Radio Shack CEO David Edmondson resigned after a newspaper reported that he had not actually earned degrees he claimed on his resume.  (But he still cashed in on $1 million in severance pay on his way out the door.) 

Stories like this should give you pause to think about your applicant screening and background checking processes. To review steps you can take to detect misrepresentations before applicants are hired, and minimize liability when you fire an employee if you later discover he or she was dishonest or not forthcoming during the application process, check out this prior post:  The Great Imposter 

Immigration and Customs Enforcement (ICE) is continuing to issue Notices of Inspection (NOI) to employers across the country.  These ICE NOIs require employers to provide I-9 forms and various payroll related information to ICE.  The increase in these type of inspections being conducted by ICE is significant.  Over the last three to four years, the number of inspections has more than tripled.  For employers getting a NOI, it can be a costly experience.  While some of the inspections may be being conducted on a random basis, the more likely sceenario is that ICE has targeted the employer based on tips, complaints, or leads developed from a variety of sources. 

Employers should respond carefully upon receiving an NOI from ICE.  The real preventative medicine for employers is to conduct an audit of your existing I-9 documents as well as review your I-9 completion practices to ensure the documentation is all in order.  In addition, employers should consider the pros and cons of signing up to participate in the E-Verify system as part of the employer's comprehensive compliance strategy.

A couple of weeks ago I wrote about humorous application mistakes reported by human resources professionals.  After seeing my blog post, one reader shared a story that's too good to keep to myself. 

It reminded me of when I was in college and I worked at a bar.  The application asked for an emergency contact number.  One lady wrote “911.”

Thanks for sharing.  It makes me wonder, however, what this applicant wrote in the line titled "sex."

Last week a new bill made its way out of the House Judiciary Committee in Washington and now is in a position to come before the House as a whole.  The bill, titled the Legal Workforce Act of 2011 (HR 2885), would require all employers to participate in the E-Verify system.  Currently, participation is mandatory only for certain federal contractors and employers located in states with mandatory E-Verify state law provisions.  While the bill still has a long journey ahead of it before becoming a law, it is something employers should be considering as they decide whether to voluntarily opt in to using the E-Verify system.  As usual, the political rhetoric in Washington surrounding immigration-related topics is heated.  The difference this go-around is the weak economy and the commentary about ridding the workforce of illegal aliens being a jobs package for unemployed Americans.  Stay tuned as the debate moves towards the full House in the near future.  To catch a glimpse of the political commentary click here for the press release issued by the bill's sponsor. 

The I-9 form has become a routine part of the hiring process.  Most employers don't give much thought to the I-9 once the hiring process is completed.  The form is filled out and promptly tossed into the I-9 file, never to be seen again (unless the government visits).  If this describes your company, you might consider changing that practice.  It is a good idea to conduct an audit of your own I-9 documents on a periodic basis to ensure your company is in compliance.   The penalty for failing to properly comply with the I-9 requirements ranges anywhere from $110 to $1,100 per violation.  This can add up extremely fast.  Here are a few things to consider as you review your company's I-9 documents:

1.  Did the employee completely fill out the top section of the form?  Make sure each line is completed and that the employee signed and dated the document.

2.  Are the entries in the document section fully completed?  Make sure each of the lines is completed to the fullest extent possible.  One common error in this part of the I-9 is the failure to list the issuing authority for the document.

3.  Are you properly utilizing List A, B, and C documents?  Remember -- List A is enough by itself.  If you use documents from List B or List C, they are used as a package.  Your form should either have one document in List A or a document in List B and C together. 

4.  Consistency check the documents against the      Continue Reading...

The EEOC recently held a public meeting to discuss the issue of employer usage of arrest and conviction records in making employment decisions.  This meeting may signal a renewed interest in the issue on the part of the EEOC.  With the easy access to information via the internet, the use of criminal background checks is more prevalent which may be the motivation behind the EEOC's public discussion.  

The general EEOC position is that the use of arrest records and/or convictions to take an adverse action without further consideration of the circumstances involved is inappropriate.  In situations where the arrest/conviction is related to activity tied to the job, the use of an arrest record as the basis for adverse action can be justified by an employer.  Stay tuned for further EEOC activity on this topic.

To see the press release regarding the public meeting click here.  For a summary of the EEOC's existing policy guidance on the use of arrest records click here.

ICE (Immigration and Customs Enforcement) recently announced the start of another large scale effort to conduct I-9 audits across the country.  The most recent announcement indicated ICE would conduct over 1,000 audits in the later part of this summer which is similar to a large wave of audits conducted in February of this year.  This most recent wave signals a continuation of the strong commitment made by President Obama to ensure employers were in compliance with the I-9 requirements.  Employers should expect to see an increasing number of these types of audits as ICE has established a new centralized inspection center to allow for the processing of higher volumes of audits than in the past.  If you haven't done so lately, now would be a good time to self-audit your own I-9 collection to best position your company should you end up on the list of lucky employers being audited.

Later this month the flick Bad Teacher, starring Cameron Diaz, will hit movie screens across the country.  And who can forget Billy Bob Thornton's turn as the title character in Bad Santa, the screwball black comedy produced by the Coen brothers?  Perhaps continuing a trend, potential scripts for Bad Job Applicant are practically writing themselves.

A couple of months ago I wrote about outrageous interview gaffes made by job applicants, as reported by hiring managers in a national survey.  (Click here to read the original post.)  This week one of my favorite guilty pleasure websites, HR Strange But True!, told the real-life tales of several other odd interview experiences.  Click here to read about the intoxicated interviewee, the job seeker with a fishy story about her past jobs, and the overly affectionate applicant. 

A few weeks ago I discussed a survey in which hiring managers were asked about the most-common, and the most-outrageous, mistakes made by job applicants during interviews.  (Click here to read the original post.)

One reader shared the following story about a job seeker who lost out on a job because of pre-employment misconduct following his interview.  The applicant was professional and well-behaved during the interview process.  But things went south after he received a conditional offer of employment (pursuant to the ADA) and was sent to undergo an off-site medical evaluation (as all persons being hired for this position were required to do).  Upon arrival, the job seeker became belligerent and threatening to the medical staff.  Things were so bad, in fact, that the doctor refused to examine him, instructed him to leave the premises, and called the police.  Needless to say, the conditional offer of employment was withdrawn.

While an extreme example, this story shows how some applicants may be able to hide their true stripes during the formal interview process.  So you need to make sure your hiring process is designed to weed out persons who would not be a good fit for your organization.  I know of several employers who swear that adding one simple step to the applicant screening process has worked wonders for them.  What do they do?  After a job interview, HR or the hiring manager solicits information from the receptionist to get her assessment of the candidate.  If the applicant was rude, disrespectful, condescending, or otherwise unpleasant to the receptionist, then it's a safe bet the applicant is      Continue Reading...

What’s the most-outrageous mistake made by a job applicant you’ve interviewed?  Over 2,400 hiring managers were asked that question in a recent nationwide CareerBuilder survey.  Here are some of my favorite responses:

The Department of Labor (DOL) recently penalized the Prince George's County school system for its failure to properly pay H-1B workers.  In the case of an H-1B worker, the employer must pay the employee at least the prevailing wage amount established for the position.  The prevailing wage system is designed to ensure that foreign labor is not used to lower the U.S. wage base in a given occupation.  While the announcement is unclear, the problematic issue for the school is likely to have been the requirement the H-1B worker pay some or all of the fees for the preparation of the H-1B application packages. 

Generally speaking, it can be permissible for the employer to require an employee to pay the legal fees associated with any H-1B filing so long as these costs do not effectively lower the employee's wage rate below the prevailing wage rate.  For purposes of compliance, H-1B employers should view the prevailing wage as the minimum wage for an H-1B employee.  In addition to the prevailing wage floor, employers with H-1B employees should also be mindful of how the H-1B employee's compensation compares to his/her peers in the job classification.  Dropping below one of these floors can create a backpay liability issue for an H-1B employer.  In addition to the attorneys' fees concerns, there is also a government filing fee cost associated with the H-1B program.  While a payment of the attorneys' fees amount can be permissible, employers are not permitted to require the employee to pay the government filing fees associated with the H-1B application process.  

For the      Continue Reading...

A new pilot program has been added to the E-Verify system to allow individuals to check themselves and correct any problems that might prevent them from being verified.  This feature is currently only available to individuals in Arizona, Colorado, the District of Columbia, Idaho, Mississippi, and Virginia.  It is expected this self-check feature will be expanded and rolled out to individuals living in other states.  The addition of this capability seems to be an attempt to remedy the concern that the E-Verify system is prone to error and may cost authorized workers a job opportunity as workers will be able to check their own data and correct any problems prior to applying for employment.  

What does this mean for Kansas employers?  In the short-term, not much.  In the long-term, this appears to be one more step down the path to an eventual national requirement for all employers to use the E-Verify system.  One of the historical concerns with E-Verify is the potential error rate.  With the implementation of state laws in several states mandating use of E-Verify and the federal contractor requirement, the scope of participating employers has grown considerably.  This self-check option is a great way to address any concerns about employee fear of errors in the system.  When it is all said and done, don't be surprised if you start to hear talk of all employers being required to use E-Verify as part of the I-9 process. 

What do you do when your former employee uses your company as an employment reference?  Is it your company policy to say nothing?  Or is there no policy in existence?  It isn't very helpful for your former employees if you say nothing.  And in most cases, you would like to provide a reference to help them along.  It becomes a bit more problematic when the reference request is for a former employee that had issues.  If you provide a negative reference, you might find yourself the target of a defamation or retaliation claim.  It is always a good idea to have a consistent approach to providing references and to assist with that goal -- having a policy is ideal.  In Kansas, there is a statute providing immunity to employers who provide references within the scope of the statute.  A policy centralizing employment references to the HR group and tracking the terms of the statute is one of the better ways to ensure your company is following a consistent approach as well as avoiding potential litigation traps.  The provisions of the reference statute can be found here.

Over three-fourths of companies reported making a bad hire that adversely affected their business in 2010, according to a new survey by careerbuilder.com.  Twenty-one percent said one bad hire cost their company more than $50,000 last year, and ten percent said it cost them between $25,000 and $50,000.  Bad hires can be costly because of lost time and money to recruit and train a replacement, lower productivity, and legal issues.  The most common reason for making a bad hire?  The need to fill a job quickly.  For a more-detailed look at why bad hires create chaos, and the need to promptly cut your losses, click here. 

The Department of Homeland Security (DHS) recently issued a final rule making a number of minor revisions to the regulations governing the I-9 process used by employers to document newly hired employees' eligibility to work in the United States.  The issuance of the final rule incorporates with some slight modifications the provisions of an interim rule issued in 2006.  The highlights are as follows:

1.  A language clarification was added to make clear that employers have three business days to complete the I-9 process as opposed to three calendar days.

2.  The interim rule allowed employers to use either a paper or electronic retention system and the the final rules allows paper, electronic, or some combination of a paper and electronic system.

3.  The final rule allows employers to maintain a separate I-9 file or to store I-9 documents within the files containing the employees' other personnel documents.

4.  The final rule relaxed the audit trail requirements for electronic storage systems requiring only an audit trail for record creation, modification, or deletion.  In essence, a viewing of the I-9 document does not need to be recorded by the electronic storage system.

5.  The interim rule required employers to provide employees with a printed receipt showing the record each time it is modified.  This requirement was relaxed to allow employers to only provide a printed receipt upon the request of an employee.

While the final rule made a few other changes, the ones listed above are the high points.  For those interested in reading the final rule, it can be found      Continue Reading...

What’s the most unusual question you’ve ever been asked during a job interview? During a pre-NFL-draft interview last week, Miami Dolphins general manager Jeff Ireland asked former Oklahoma State receiver Dez Bryant, “Is your mother a prostitute?”