Getting Your Booster Shot:

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1 Getting Your Booster Shot: Update On Recent Employment Law Changes 1 MARIA DEL CARMEN RAMOS, ESQ. BRAD DEBEAUBIEN, ESQ. SHUMAKER, LOOP & KENDRICK, LLP TAMPA, FLORIDA 2 Introduction In an effort to boost your awareness of some recent changes in the law affecting employers, what follows is a brief summary on the Employment Eligibility Verification Process, COBRA, the Employee Free Choice Act, Florida s Bring Your Guns to Work Law, and the Florida Domestic Violence Leave Act. Within each topic, you will find a both a description of the law and its applicability, as well as some suggestions as to how businesses might prudently address the changes at hand. The Employment Eligibility Verification Process Since the enactment of the Immigration Reform and Control Act of 1986 ( IRCA ), employers and recruiters have been subject to civil and criminal penalties for, among other things, knowingly hiring, recruiting, or continuing to employ an unauthorized alien worker. Essentially, IRCA imposes upon employer the obligation to verify the identity and employment eligibility of all employees hired to work in the U.S. To comply with this legal obligation, every U.S. employer is required to complete Form I 9 for all employees including U.S. citizens. The Form I 9 3 provides the employee 1 The following is not intended to be legal advice pertaining to your situation and should not be construed as such. The information provided is intended merely as a general overview with regard to the subject matter covered. 2 The authors acknowledge with gratitude the assistance of Edward J. Comey in preparing this manuscript. 3 The current version of the Form I-9 and the Handbook for Employers are dated (Rev. 02/02/09) and (Rev. 04/03/09) N respectively. Copies of the updated Form I-9 and Handbook for Employers are currently available at the USCIS website ( (The revision date can be found on the lower right hand corner of the form. No previous editions should be used.) In addition, a copy of each can be found in Appendices A and B respectively. Employers should use the Form I-9 revised as of February 2, 2009 (See SLK_TAM: # v6 1

2 a list of three categories of documents from which the employee may choose to prove identity and/or employment authorization. The employer must not request or suggest that any particular document from those categories be provided. 4 The employee has the option of either: (i) producing one document from List A (establishing both identity and authorization to work in the U.S.); or (ii) producing both one document from List B (establishing identity) and one document from List C (establishing employment authorization). 5 Regardless of which document(s) the employee chooses to present, however, the employee must produce originals, not photocopies, of such documents for the employer to review. Employee s Obligations Employees have an affirmative duty to provide the information requested in Section 1. 6 Specifically, employees must truthfully attest to their status by checking the applicable box indicating that they are: attached Appendix A). NOTE: The 02/02/09 revision will continue to be valid for use beyond its current expiration date of June 30, On June 26, 2009, USCIS issued a press release that it had requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. When the extension is approved, USCIS will update Form I-9. Thereafter, employers will be able to use either the Form I-9 with the new revision date of the Form I-9 with the 02/02/09 revision date at the bottom of the form. 4 Handbook for Employers. (April 3, 2009) p A list of acceptable documents under each category is included with the Form I-9. The employer may not specify which document or combination of documents the employee is required present. In addition, the requirements related completion of Form I-9 were recently revised to improve the security of the employment authorization verification process. These changes include the following: 1. Unexpired, valid documents required. Expired U.S. passports and drivers' licenses are no longer acceptable List A and List B documents, respectively. A document containing no expiration date, such as the Social Security card, will be considered unexpired. 2. Documentation for citizens of Federated States of Micronesia and Republic of the Marshall Islands added. List A has been amended to include a passport from the Federated States of Micronesia or Republic of the Marshall Islands with Form I-94 or Form I-94A indicating nonimmigrant admission under the compacts of free association between the United States and these nations. 3. Temporary I-551 printed notation added. In addition to a foreign passport that contains a temporary I-551 stamp, List A will now include a foreign passport that contains a temporary I-551 printed notation on a machine-readable immigrant visa. 4. Forms I-688, I-688A and I-688B eliminated. The Temporary Resident Card and older versions of the Employment Authorization Card are no longer being issued, and those in circulation have expired. These cards are, therefore, no longer acceptable List A documents. 6 On the recently revised Form I-9, the following changes have been made to Section 1 of the Form: 1. In Section 1, "citizen of the United States" and "noncitizen national of the United States" are now separate categories in the employee attestation part SLK_TAM: # v6 2

3 1. a citizen/national of the United States (top box), or 2. a lawful permanent resident with a green card (middle box), or 3. Alien authorized to work in the United States until a specified dated (bottom box). Employees also must sign and date this section when completed. 7 An employee, however, is not required to include his or her social security number in Section 1 of the Form I 9, nor can he be required to do so by the employer. 8 This information block is optional. Additionally, an employer may not require an employee to present documents to verify Section 1 information. 9 Employer s Obligations It is the employer s responsibility to ensure that Section 1 is completed by the employee upon the date of hire. Because employers are held responsible for deficiencies of information in Section 1, employers should take special care to make sure that employees complete Section 1 in full. In addition, the person responsible for completing and updating the Form I 9 on behalf of the employer should be a responsible individual who is well informed of the law and aware of the verification process. Again, the employer is ultimately responsible for ensuring compliance and is deemed liable for the acts of its agents. Of paramount importance is the employee s signature and attestation of status under the penalty of perjury. If the employer has translators or preparers assist an employee complete Section 1 of the Form I 9, that individual must also sign, date, and provide the requested information in the Preparer/Translator Certification Block at the bottom of Section of the form. A definition of noncitizen national is added to the instructions to the Form I In Section 1, "An alien authorized to work until _/_/_ (Alien # or Admission # " is replaced with "An alien authorized to work (A# or Admission # ) until (expiration date, if applicable month/ day/ year)_/_/_." 7 Handbook for Employers. (April 3, 2009) p Providing a Social Security Number on Form I-9 is voluntary for all employees unless you are an employer participating in the USCIS E-Verify Program,....You may not ask, however, an employee to provide you a specific document with his or her Social Security Number on it. To do so may constitute unlawful discrimination. Handbook for Employers. (April 3, 2009) p Id. 10 Handbook for Employers. (April 3, 2009) p SLK_TAM: # v6 3

4 In Section 2, the employer must attest, under penalty of perjury, that he/she has reviewed Section 1 and the related documents. Further, while the employer is not expected to be a document expert, the agent conducting the review on behalf of the employer should have some understanding of the available types of employment eligibility documentation. The standard for review of documents in the employment verification process is that of reasonableness. An I 9 List document is acceptable if it reasonably appears on its face (1) to be genuine and (2) relate to the individual who presents it. 11 It is important to note the distinction that the person who signs Section 2 of the Form I 9 is attesting to the fact that he or she has reviewed the original document and it reasonably appears to him or her, upon reasonable inspection of its features and the information it contains, to be genuine and to relate to the employee who has presented it for employment eligibility verification purposes, and not to the legitimacy of the status of the employee. 12 If documents do not appear to be genuine, an employer may reject the documents presented and request other documentation that satisfies the Form I 9 requirements. 13 Furthermore, when verifying an employee s eligibility, the employer must not demand more or different documents than those necessary to comply with the verification requirements. Nor can an employer refuse to honor documents which, on their face, reasonably appear to be genuine and to relate to the person presenting them. An employer who demands more or different documents can be guilty of discrimination if it is proven that the employer s demands were made with discriminatory intent. In cases of document abuse, employers who are found to have requested more or different documents than the employee chose to present from List A or Lists B and C also may be subject to a fine ranging from $110 $1,100 for each individual determined to have suffered such document abuse. 14 An employer may, but is not required to, photocopy and attach to the Form I 9 the documentation presented by the employee. Photocopies of documents, however, do not excuse failure to complete the form. If the employer decides to make copies, it should be done for all employees, to avoid a charge of discrimination. 11 Employer Information Bulletin 103: I-9 Document Review. (March 16, 2005) p See Form I Employers should be alert for signs of fraud, such as a social security card that contains more than nine digits or that begins with 000. Occasionally, an employer may discover that an employer whose documentation appeared to comply with Form I-9 requirements is not authorized to work. In such cases, an employer should question the employee and provide another opportunity for review of proper Form I-9 documentation. If the employer is unable under such circumstances to provide satisfactory documentation, employment should be discontinued. About Form I-9, Employment Eligibility Verification available athttp:// 14 Handbook for Employers. (April 3, 2009) p. 22. SLK_TAM: # v6 4

5 Once the employer reviews the documents provided by the employee, the employer must then complete Section 2 of the Form I 9 with the relevant information from the provided documents and sign and date the form. In particular, employers are to provide all the requested information in the CERTIFICATION portion of the Form I Failure to sign and date the form are common mistakes made by employers that can result in technical violations. 16 Updating And Reverification 17 Section 3 of the Form I 9 is used for updating and reverifying an employee s employment eligibility. In order to avoid a fine, this section should be filled out by the employer only when appropriate. Under 8 C.F.R. 274a.2(b)(1)(vii), employers are required to reverify employment eligibility no later than the date that an employee s work authorization indicated in Section 1 or evidence of employment authorization recorded in Section 2 expires. 18 As a result, employers should maintain a tickler system that will remind the employer to reverify each employee s information by the correct deadline. To update a Form I 9, employers must record the date of rehire, record the document title, number and expiration date (if any) of documentation presented to reverify expired work authorization or work authorization documentation, sign, and date Section 3 of the previously completed Form I 9. An employer may also opt to complete a new Form I 9 altogether. Regardless of which option the employer chooses, it is important that the person who actually examines the documents on behalf of the employer personally sign and date the attestation provision at the bottom of the form. 19 To reverify expired status (Section 1) and/or expired work authorization document(s) (Section 2), an employee may present any currently valid document from List A or List C. 20 As in the initial verification process, an employer cannot demand to be 15 The personal attestation and signature of the employer are extremely important. The person who actually reviews original documents whether that person is the employer, or an agent of the employer, such as a provider of contract services to the employer must sign and date the Form I-9. Employer Information Bulletin 102: The Form I-9 Process In a Nutshell. (October 7, 2005) p Note that if a copy of Form I-9 is used for compliance purposes, both sides must be photocopied, as well as the instructions. 17 For more information, see Handbook for Employers. (April 3, 2009) p Handbook for Employers. (April 3, 2009) p Id. 20 Documentation for reverification purposes may be the renewed version of the originally presented document or any other acceptable document from List A or List C that demonstrates current work eligibility/authorization. Documents from List B need not be reverified when they expire, and are acceptable even if they have already expired at the time that they were initially presented. SLK_TAM: # v6 5

6 shown more or different documentation, so long as the employee presents an appropriate document from either List A or from both List B and C. Asking for more or different documents, while updating and reverifying an employee s employment eligibility, could lead to a charge of national origin discrimination and document abuse. 21 An employer does not need to reverify an employee who originally presented a U.S. passport, an alien registration receipt card or lawful permanent resident card (I 551, also known as a resident alien card ) with an expiration date. 22 Although the card expires, the status of lawful permanent resident does not. However, permanent residents who have a temporary I 551 stamp in their passports must present a new unexpired stamp or the actual Form I 551 permanent resident card by the time the stamp expires. 23 Receipts showing that the employee has applied for an extension of an expired employment authorization document are not acceptable. 24 If at the time of updating and/or reverifying, the employee s name has changed, then the employer must complete Section 3, block A. If an employee is rehired within three years of the date the Form I 9 was originally completed, and the employee is still eligible for employment on the same basis as indicated on the form, the employer completes Section 3, block C and the signature block. 25 If there is a change in structure or ownership of an employer, a new Form I 9 is normally not required, so long as the employee is deemed to be continuing in employment with the same employer. 26 In certain situations, however, new Form I 9 may need to be completed, and thus counsel should be consulted in this scenario. Failure to update Forms I 9 is a frequently cited mistake of employers. 27 Failure to reverify employment authorization after it expires is a violation of IRCA. If an employee works beyond his employment eligibility expiration date and the employer has not reverified the employee s eligibility, the employer is liable for civil fines, regardless of lack of intent to violate the reverification requirement Handbook for Employers. (April 3, 2009) p Id. at Id. at 8; see also Id. at Id. at 12; Employer Information Bulletin 102: The Form I-9 Process In a Nutshell. (October 7, 2005) p U.S. v. Noel Plastering & Stucco, Inc., No (OCACHO Sept. 26, 1991). 28 U.S. v. Buckingham Ltd. Partnership, No (OCACHO Apr. 6, 1990). SLK_TAM: # v6 6

7 Additionally, employers, when notified by U.S. Citizenship and Immigration Services ( USCIS ) or Immigration and Customs Enforcement Bureau ( ICE ) of the Department of Homeland Security that unauthorized workers have been hired, must also reverify. Importantly, neither federal agency is not required to furnish the employer with absolute evidence of its employees illegal status in order to trigger an employer s reverification obligation. Suspicious circumstances are sufficient to trigger an employer s obligation. 29 Revising and/or Replacing The Form I-9 In the event an employer needs to correct an employee s Form I 9, the revised information should be inserted, signed, and dated as of date the correction was made. The employee should also sign and date the correction if the omission or mistake was in Section 1. Under no circumstances should the form be backdated. In addition, if at any time an employer discovers that an employee s Form I 9 is missing and/or not on file, the employer should immediately have the employee complete Section 1 of the Form I 9 and submit the required documentation in Section Again, the new form should then be dated with the date of completion. If paperwork errors or violations are discovered, the employer is required to correct the problem and to continue to update its records, as necessary. The Ninth Circuit has held that there is a continuing duty to prepare and make available Form I 9 for all employees, even those for which the employer has already been cited for a violation. 31 Retention As explained below, because an employer must be able to produce the Forms I 9 within three days of an official request, an employer s obligations in this process are extensive. In a nutshell, the employer is required to retain the Forms I 9 for a period of three years after the hiring of an employee or for one year after that employee s termination date, whichever is later. 32 Moreover, if the employee is hired for less than 3 days, the employer must comply with the I 9 requirements at the time of hire U.S. v. Noel Plastering & Stucco, Inc., supra. 30 Employer Information Bulletin 102: The Form I-9 Process In a Nutshell. (October 7, 2005) p. 3. Although not guaranteed to shield an employer from being sanctioned, employers may provide an explanatory annotation as to why the Form I-9 was not completed on a timely basis. Id. 31 See Big Bear Super Market No. 3 v. INS, 913 F. 2d 754 (9th Cir. 1990). 32 INA 274A(b)(3)(B) (codified as 8 U.S.C. 1324a. (b)(3) (B)) C.F.R. 274a.2(b)(1)(iii), 1274a.2(b)(1)(iii). SLK_TAM: # v6 7

8 Employer Sanctions As immigration reforms appear to be making recent headline news, USCIS has refrained from pursuing civil penalties and opted instead to pursue criminal penalties available to it to prosecute employer violations of hiring or continuing to employ unauthorized workers whom the employer knows or should know lack the right to work in the U.S. After November 6, 1986, employers convicted of engaging in a pattern or practice of knowingly hiring or continuing to employ unauthorized workers, may be fined up to $3,000 per unauthorized employer and/or face up to 6 months of imprisonment. 34 Persons who knowingly use fraudulent identification documents, identity documents that were issued to persons other than themselves, or false attestations for the purpose of satisfying the employment eligibility verification requirements, may be fined and/or imprisoned for up to 5 years. 35 Further, USCIS and ICE are authorized to conduct investigations to determine whether employers have violated their employment verification obligations knowingly employing unauthorized workers and failing to properly complete, present, or retain the Form I 9 for new hired individuals. If USCIS or ICE believes that violations have occurred, ICE may issue a Warning Notice, a Technical or Procedural Failures Letter notifying the employer of technical or procedural failures in need of correction, or a Notice of Intent to Fine (NIF). 36 Official Inspection Upon request, employers must make available all Forms I 9 subject to the retention requirement to an authorized official of ICE, Department of Labor, and/or the Justice Department s Office of Special Counsel for Unfair Immigration Related Employment Practices. The Forms I 9 must be in their original form or on microfilm or microfiche. The official is only required to give an employer at least 3 days advance notice before the inspection, and the official may request original documents, rather than photocopies. 37 Failure to comply with such a request is sanctionable. 38 Additionally, Forms I 9 should 34 Handbook for Employers. (April 3, 2009) p Fines for use of fraudulent documents described above can range in the amount of: $375 - $3,200 for each fraudulent document that is the subject of the violation, for the first offense; and $3,200 - $6,500, for each fraudulent document that is the subject of the violation for each subsequent offense. Id. at Id. at 21. If an employer receives a NIF, the employer may request a hearing before an administrative law judge within thirty (30) days. 37 About Form I-9, Employment Eligibility Verification, 38 INA Section 274A(b)(3). SLK_TAM: # v6 8

9 not be destroyed if the employer is under investigation or audit by ICE or USCIS. But the catch is, regardless of whether the employer has hired an unauthorized worker, the employer could be subject to sanctions for simply failing to comply with ANY of the Form I 9 requirements. Technical Violations 39 Failure to complete, correct, update, reverify, retain or produce the Form I 9 may result in a finding of noncompliance and subject the employer to fines. Employers may also face liability for failure to comply with the timeliness requirements (i.e., completion of the Form I 9 within three days of starting employment). 40 Because the Form I 9 contains a space for the start date, as well as the completion date of the form, ICE is able to verify whether the employer has complied with the timeliness requirement. Fines for paperwork violations occurring before September 29, 1999, are between $100 and $1,000 for each individual for which a mistake or omission was made; fines for violations occurring on or after September 29, 1999, are between $110 and $1, In addition to imposing fines, employers can be required to take corrective actions such as providing their employees with education and posting notices related to the Form I 9 process. 42 Consequently, when contemplating appropriate sanctions, courts consider the following five factors: (i) the size of the employerʹs business; (ii) the employerʹs good faith; (iii) the seriousness of the violation: (iv) whether the individual involved was an unauthorized alien; and (v) whether the employer has a history of previous violations. 43 In an effort to distinguish between technical and substantive violations, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( IIRAIRA ) provided employers who have made technical or procedural violations of the regulations with a good faith exemption. 44 For technical or procedural failures to complete the form properly, if the employer made a good faith attempt to comply, ICE must explain the problem to the employer and allow the employer 10 days to make a correction. At that 39 Examples of common paperwork violations include the address or date is missing on the form; the expiration date is missing from a List B document; or the employer fails to date Section See U.S. v. Peking Inc., 2 OCAHO 329 (June 18, 1991) (An employer may not have the individual commence work prior to inspection of the documents). 41 INA 274A(e)(5) (codified as 8 U.S.C. 1324a. (e)(5)); 8 C.F.R. 274a. 10(b)(2). 42 INA 274B(g)(2)(B)(v)-(vi) (codified as 8 U.S.C. 1324b. (g)(2)(b)(v)-(vi)) C.F.R. 274a. 10(b)(2); See 69 Interpreter Releases 253, (March 2, 1992). 44 Some examples of technical errors include the following: (1) the address or date is not on the form; (2) the expiration date is missing from a List B document; or (3) the employer does not date section two. SLK_TAM: # v6 9

10 time, if the employer fails to remedy the problems, the penalties as described above will be imposed. This provision, added by IIRAIRA, applies to failures occurring on or after September 30, This exemption, however, does not relieve an employer who has engaged in ʺpattern and practiceʺ violations. Substantive Violations Unlawful Employment Employers are prohibited from knowingly hiring, recruiting or referring for a fee, or continuing to employ an unauthorized alien. 45 As with paperwork violations, employers have available to them an affirmative defense that the employer attempted in good faith to comply. ICE, however, can rebut the employer s affirmative defense of good faith if ICE can establish that the documents provided by the employee did not reasonably appear to be genuine. 46 In addition, ʺfailure to comply with the verification provisions of IRCA, although separately punishable, does not in itself establish that an employer knowingly hired an unauthorized alien. 47 Actual knowledge of an unauthorized workerʹs status may be shown by a foreign nationalʹs own statement to that effect or by an admission by the employer or an informant during the course of an ICE investigation. In addition, the actual knowledge of an agent acting for the employer will be imputed to the employer for purposes of the employer sanctions provisions. Constructive knowledge may also be used to hold an employer liable for a substantive violation of IRCA. The regulations define constructive knowledge as ʺknowledge which may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.ʺ Constructive knowledge may therefore include, but is not limited to, situations where an employer: (i) fails to complete or improperly completes the Form I 9; (ii) has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; or (iii) acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf. 48 Once an employer becomes aware that an employee is ineligible to work in the U.S., the employer is also prohibited from continuing to employ that employee. 49 Thus, 45 INA 274A(a)(1) (codified as 8 U.S.C. 1324a. (a)(1)). 46 See Collins Foods Int l, Inc. v. INS, 948 F.2d 549 (9th Cir. 1991). 47 Schmidt, Establishing an Employer Compliance Program Under IRCA, Immigration Briefings 1, 4 (March 1988) C.F.R. 274a.1 (l). 49 INA 274A(a)(2) (codified as 8 U.S.C. 1324a. (a)(2)). SLK_TAM: # v6 10

11 upon discovery of the employeeʹs unauthorized status, regardless of how that information was acquired, the employer is required to terminate the employment relationship. In the event that an employer is found to have knowingly hired, recruited or referred for a fee, or continue to employ, an unauthorized worker for employment in the U.S., the employer shall be subject to a cease and desist order from the unlawful behavior and to pay a civil fine as follows: 1. First Offense: Not less than $375 and not more than $3,200 for each unauthorized alien; 2. Second Offense: Not less than $3,200 and not more than $6,500 for each unauthorized alien; or 3. Subsequent Offenses: Not less than $4,300 and not more than $11,000 for each unauthorized alien. 50 In addition, these penalties are not solely limited to employees for whom employers complete and retain a Form I 9, but also cover an employer s use of contract personnel the employer knows is not authorized to work in the U.S. 51 Unlawful Discrimination Federal law protects individuals from unfair immigration related employment practices of a U.S. employer. In that regard, the Form I 9 may not be used to pre screen employees for hiring, and cannot refuse to employ an individual based on a future expiration date of a current employment authorization document. 52 Specifically, IRCA strictly prohibits employers with 4 or more employees from discriminating against any person (other than an unauthorized alien) in hiring, discharging, or recruiting or referring for a fee because of a person s national origin or, in the case of a citizen or protected individual, citizenship status. 53 Likewise, Title VII provides that employers with 15 or more employees may not discriminate against any person on the basis of national origin in hiring, discharging, recruitment, assignment, compensation, or other terms and conditions of employment. 54 If an employer is determined to have engaged in discrimination, the employer will be ordered to cease the prohibited practice and may be ordered to: 50 Handbook for Employers. (April 3, 2009) p Id. 52 Id. at Handbook for Employers. (April 3, 2009) p Id. at 20. SLK_TAM: # v6 11

12 1. Hire or reinstate, with or without back pay, individuals directly injured by the discrimination; 2. Post notices to employees about their rights and about employers obligations; and/or 3. Educate all personnel involved in hiring and in complying with the employer sanctions and anti discrimination laws about the legal requirements. 55 Additionally, an employer may also be subject to the following civil monetary fines: 1. First Offense: Not less than $375 and not more than $3,200 for each individual discriminated against. 2. Second Offense: Not less than $3,200 and not more than $6,200 for each individual discriminated against. 3. Subsequent Offenses: Not less than $4,300 and not more than $16,000 for each individual discriminated against. 56 ICE Launches Nationwide Form I-9 Initiative On December 17, 2008, USCIS issued a formal notice in the Federal Register that USCIS had revised Form I 9. All employers are required to use the revised Form I 9 for new employees hired on or after April 3, Originally, the revised Form I 9 was scheduled to become effective February 2, 2009, but USCIS and the DHS received numerous requests to extend the comment period for this rule. Specifically, there were substantial concerns regarding to the adequacy of proposed changes to the Form I 9 regulations and the Form I 9 itself. Among the inadequacies cited in the proposed interim regulations and form is the failure to address documentation of employment authorization for aliens who are authorized to work, but who present special circumstances for which DHS has provided no guidance whatsoever to an employer regarding how to complete the Form I 9 or how to record an extension of work authorization. Despite the delay, revised Form I 9 went into effect on April 3, At the same time, ICE issued an announcement about the Obama Administration s immigration enforcement agenda to ferret out the offending employer by auditing and inspecting employers hiring records to determine whether or not they are comply with employment verification laws and regulations. 57 Specifically, ICE intends to focus its 55 Id. at Id. 57 ICE Launches Nationwide I-9 Audit Initiative. 11 IMMIGRATION BUSINESS NEWS AND COMMENT 12. (July 15, 2009). SLK_TAM: # v6 12

13 resources on the criminal prosecution of employers who knowingly hire undocumented workers and that the agency will use all available tools, including civil fines and debarment, to penalize and deter illegal employment. 58 To this end, on July 1, 2009, ICE issued Notices of Inspections to 652 businesses nationwide. Going forward, employers need to keep in mind that ICE is more likely to favor the I 9 audit procedure over the traditional immigration raids that have become made the news in recent years because the likelihood of discovering other non immigration related violations increases when the government is on a hunt to find someone to sanction. COBRA Post The ARRA 59 In 1986, Congress passed the Consolidated Omnibus Budget Reconciliation Act ( COBRA ). The law amended the Employee Retirement Income Security Act ( ERISA ), the Internal Revenue Code, and the Public Health Service Act to provide continuation health coverage for limited periods of time to employees and their families who lost coverage due to certain specific events such as voluntary or involuntary job loss, reduction in the hours worked, transition between jobs, death, divorce, and other life events. 60 COBRA requires that group health plans (sponsored by employers with 20 or more employees in the prior year) offer certain employees and their families the opportunity for a temporary extension of health coverage (a/k/a continuation coverage) in instances where coverage under the plan would otherwise end. 61 In particular, the law requires employers and plans to provide notice. 62 Moreover, while COBRA establishes required periods of coverage for continuation health benefits (and most COBRA beneficiaries are eligible for group coverage during a maximum of 18 months for qualifying events due to employment termination or reduction of hours of work), a plan might provide longer periods of coverage beyond those required by COBRA. 63 In addition, under COBRA, a qualified beneficiary may 58 Id. 59 The authors acknowledge with gratitude the guidance and assistance of James H. Culbreth, Esq. in preparing the section addressing COBRA covered by this manuscript. 60 See 29 U.S.C.A. 1161; 61 See 29 U.S.C.A. 1161(b); Under the current COBRA scheme, a plan administrator must notify affected employees of their right to elect COBRA Although the premium might be higher than what the individual employee was paying while employed, the overall cost is usually lower than that for private, individual health insurance coverage. SLK_TAM: # v6 13

14 continue insurance coverage by paying 102% of the full monthly premium. 64 Although COBRA coverage is easy to arrange following termination of employment, many eligible employees and dependents fail to elect COBRA coverage following termination of employment because of the expense and the economic stress resulting from the loss of employment. 65 In 2009, COBRA underwent a radical change with the signing of the American Economic Recovery and Reinvestment Plan of 2009 ( ARRA ) into law. The ARRA s aim was to reduce the cost of the COBRA coverage to the employee through a federal subsidy, and, while not adding any explicit costs to an employer, to require employers with group health plans to re vamp COBRA administration and FICA tax reporting. 66 The law also made a subsidy available to assistance eligible individuals ( AEIs ) to help pay for coverage required under any state law that requires continuation coverage comparable to COBRA for group health plans that are not subject to COBRA (e.g., small employer plans). 67 An assistance eligible individuals ( AEIs ), is defined as persons who (i) lose health care coverage because of an employee s involuntary termination of employment 68 between September 1, 2008 and December 31, 2009 and (ii) attest that their same year adjusted gross income falls within permitted limits. 69 Under the ARRA, the full subsidy is available to persons with same year adjusted gross incomes less than $125,000 (individual) or $250,000 (families). The subsidy is proportionally reduced for AEIs making between $125,000 and $145,000 (individual) and between $250,000 and $290,000 (families); and is unavailable for AEIs with adjusted gross incomes above the higher levels. 70 Essentially, under the ARRA, an AEI will pay 35% of the subsidized COBRA premium, with the other 65% of the COBRA premium being paid by the employer. 71 Ultimately, the employer may recover the subsidized COBRA premium amount from the 64 Culbreth, James A. Benefits and Compensation Alert: Economic Stimulus Bill Creates Subsidized COBRA Coverage. (February 19, 2009). 65 Id. 66 Culbreth, Benefits and Compensation Alert, supra note Id. 68 It is important to note that COBRA qualifying events other than an involuntary termination of employment, such as resignation, divorce or reduction of hours, are not eligible for the subsidy. 69 Culbreth, Benefits and Compensation Alert, supra note Id. 71 Id. SLK_TAM: # v6 14

15 federal government in the form of a credit against wage withholdings and payroll taxes. 72 Superficially, [i]f the amount of subsidy exceeds the available withholding taxes, the employer will be reimbursed by the U.S. Treasury. 73 This subsidized COBRA premium can continue for a maximum of nine months, but ends when the AEI becomes eligible for coverage under another group health plan. 74 Once the subsidy ends, the AEI becomes responsible for the full cost of premiums for any remaining COBRA coverage. 75 The ARRA affects periods of coverage beginning after February 17, In addition, the ARRA provides a 60 day special election period for AEIs who (i) lost coverage as a result of an involuntary termination of employment on or after September 1, 2008 but before February 17, 2009 and (ii) were initially eligible for COBRA coverage but did not elect coverage. 76 AEIs currently receiving COBRA coverage will be eligible prospectively for the maximum nine month subsidy period. Additionally, the subsidy only permits an AEI to continue coverage at a level equal to or less than the coverage in effect at termination, and cannot be used to pay for increased coverage. 77 Employee Free Choice Act The Employee Free Choice Act of 2009 ( EFCA ) represents a potentially drastic shift in national labor policy. The EFCA, which would amend the National Labor Relations Act ( NLRA ), was introduced most recently in both chambers of Congress on March 10, Under the current NLRA procedure, a union that has secured signed union authorization cards from 30% of a bargaining unit s employees can petition the National Labor Relations Board ( NLRB ) to hold an election among all employees by secret ballot. If the NLRB holds the election, a union must then receive over 50% of the employees votes by secret ballot in order to be elected as the employees exclusive representative. The current NLRA procedure does provide that if a union initially secures signed authorization cards from over 50% of a bargaining unit s employees, it can petition to be 72 Id. 73 Id. 74 It is important to note here that this is a much more restrictive cut-off than provided under COBRA, which ends continuation rights when a qualifying beneficiary actually enrolls in a group health plan. 75 Culbreth, Benefits and Compensation Alert, supra note Culbreth, Benefits and Compensation Alert, supra note Id. 78 An original version of the EFCA was introduced in the House in 2007; that bill passed in the House but did not receive enough votes to pass in the Senate. SLK_TAM: # v6 15

16 certified as the exclusive bargaining representative without the holding of a secret ballot election. However, under that current procedure, an employer has the final discretion to refuse to recognize the status of a union based only on the obtaining of a majority of signature cards, and can instead petition the NLRB to hold a secret ballot election. The EFCA has three key components, though a likely revision to the bill may soften the first of these. As originally drafted, the EFCA, if enacted, would have allowed unions to organize much more easily by enabling unions to become certified after presenting signed union authorization cards from a majority of employees indicating that a union was wanted. This provision would have eliminated an employer s right to insist on a secret ballot election, thus making it easier for union representation to take hold. However, vigorous debate over various aspects of the EFCA has prompted key senators to consider amending the bill, eliminating this so called card check provision. 79 Under the possible revisions, the role of secret ballot elections would remain in tact, as under the current NLRA, but those elections would have to be held within 5 or 10 days after 30% of workers signed cards favoring having a union, rather than allowing campaigns to drag on for weeks or months in advance of the secret ballot election, as they often do under the current law. 80 The availability and regular use of secret ballot elections holds in check the potential for intimidation in an organizing campaign by labor and management alike and gives employees a better avenue to voice their true wishes. Whether an employee chooses to sign an authorization card or not is plainly evident to union organizers and employers, while the secret ballot provides the benefit of secrecy, allowing the employee the freedom to determine the employee s own fate without external pressure. A secret ballot election preserves employees right to keep private their stance on a volatile and divisive issue. The second major provision of the EFCA provides further protection to employees involved in union organizing campaigns (whether before or after certification) by providing triple back pay to employees who are unlawfully discharged or discriminated against while involved in union activities during an organizing campaign or in the period leading up to a first contract. Civil fines of $20,000 per violation could also be imposed if an employer is found to have willfully and repeatedly violated employees rights during an organizing campaign or in the period leading up to a first contract. The EFCA would allow the NLRB, however, discretion to set the amount of any civil fine based on the circumstances of the violations. Finally, the NLRB could seek an injunction in federal court when there is reasonable cause to believe that the employer has or will engage in a discriminatory action against an employee involved in union activities. 79 Democrats Drop Key Part of Bill to Assist Unions, New York Times, July 17, Id. SLK_TAM: # v6 16

17 The third key provision of the EFCA provides that, if parties are unable to reach a first contract after a union s initial certification within ninety days, the parties can refer their dispute to the Federal Mediation and Conciliation Service ( FMCS ). If the FMCS is unable to bring the parties to agreement within thirty days, the dispute would then be submitted to binding arbitration, after which the arbitrator s decision would remain in effect for two years. This provision likely incentivizes both sides to stonewall in their negotiations, and lessens the impact that individual employees can have on the negotiations. Both President Obama and the Secretary of Labor, Hilda Solis, support the legislation, and thus President Obama will likely sign the bill if it passes Congress. The labor movement has made passage of the Act among its highest priorities for the 2009 legislative session, while the U.S. Chamber of Commerce and other business groups have made defeat of this legislation their top priority. Both sides have undertaken massive advertising campaigns surrounding the bill, and a vote on the bill is not expected before September Florida s Bring Your Guns To Work Law Florida s Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008, know colloquially as the Bring Your Guns to Work law, took effect on July 1, The Gun Law provides that [n]o public or private employer may prohibit any... employee... from possessing any legally owned firearm when such firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot and when the customer, employee, or invitee is lawfully in such area. 82 The Gun Law defines employee to mean any person who possesses a valid concealed weapons permit and works for salary, wages or other remuneration; is an independent contractor; or is a volunteer, intern or other similar individual. The Gun Law goes on to provide that no public or private employer may make a verbal or written inquiry of any of its employees, customers or invitees regarding whether that person has a firearm locked in their vehicle. Moreover, the Gun Law provides that employers may not take any action against employees, customers or invitees based upon the verbal or written statements of any person concerning possession of a firearm inside a vehicle. As you might expect, a search of a vehicle in the parking lot of a public or private employer to discover whether a firearm is located inside the vehicle may only be 81 Hereafter, I will refer to the Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008 as the Gun Law. 82 Section (4)(a), Florida Statutes (2009). SLK_TAM: # v6 17

18 conducted by on duty law enforcement personnel, and only in a manner that is consistent with state and federal constitutional protections. The Gun Law also provides that employers may not condition employment on either the fact that an employee or prospective employee holds a license to carry a concealed weapon or firearm, or any agreement by an employee or a prospective employee that prohibits an employee from keeping a legal firearm locked in their vehicle. What s more, employers may not terminate an employee or otherwise discriminate against an employee, invitee or customer for exercising his or her right to keep and bear arms or for exercising the right of self defense, as long as a firearm is never exhibited on company property for any reason other than lawful defensive purposes. The Gun Law does provide that employers will not be liable for any action or inaction taken in compliance with this section. Additionally, the Gun Law does not expand any existing duty, nor create any additional duty, on the part of employers, property owners, or property owners agents. Not surprisingly, there are some exceptions to Gun Law s applicability. particular, the rights and prohibitions in the Gun Law do not apply to: In 1. any school property, public or private; 2. any correctional institution; 3. any property where a nuclear powered electricity generation facility is located; 4. any property upon which are conducted substantial activities involving national defense, aerospace, or homeland security; 5. any property upon which the primary business conducted is the manufacture, use, storage, or transportation of combustible or explosive materials regulated under state or federal law; 6. company vehicles; or 7. any property owned or leased by an employer upon which the possession of a firearm is prohibited under either federal law, a contract with a federal government entity, or a general law of Florida. In light of the Gun Law, employers should revise any policies which flatly prohibit weapons anywhere in the workplace, including in vehicles, along with any policies which authorize employers to search employee vehicles. Since the law is heavy on protections for gun carrying employees, employers should tighten up existing policies for addressing both violence in the workplace and, in particular, violence prone employees. SLK_TAM: # v6 18

19 Florida s Domestic Violence Leave Law Florida employers are required to offer leave to employees for activities resulting from an active of domestic violence under what s commonly referred to as the Domestic Violence Leave Law, or DVLL, which took effect July 1, Under the DVLL, [a]n employer shall permit an employee to request and take up to 3 working days of leave from work in any 12 month period if the employee or a family or household member of an employee is the victim of domestic violence or sexual violence. This leave may be with or without pay, at the discretion of the employer. 83 The DVLL only applies to employers with fifty (50) or more employees. Additionally, only those employees who have been employed for at least three (3) months are eligible for leave under the law. Employers should note, however, that eligible employees are entitled to the leave if either the employee or a family or household member of the employee has been the victim of domestic violence or sexual violence. Employees who take leave under the law must use the leave from work to do one or more of the following: 1. Seek an injunction for protection against domestic violence or an injunction for protection in cases of repeat violence, dating violence, or sexual violence; 2. Obtain medical care or mental health counseling, or both, for the employee or a family or household member to address physical or psychological injuries resulting from the act of domestic violence or sexual violence; 4. Obtain services from a victim services organization, including, but not limited to, a domestic violence shelter or program or a rape crisis center as a result of the act of domestic violence or sexual violence; 5. Make the employeeʹs home secure from the perpetrator of the domestic violence or sexual violence or to seek new housing to escape the perpetrator; or 6. Seek legal assistance in addressing issues arising from the act of domestic violence or sexual violence or to attend and prepare for court related proceedings arising from the act of domestic violence or sexual violence. Except in cases of imminent danger to the health or safety of the employee or family or household member, any employee seeking leave under the law must provide the employer with advanced notice of the leave and sufficient documentation of the act of 83 Section , Florida Statutes (2009). SLK_TAM: # v6 19

20 domestic violence as required by the employer s policies. Before utilizing leave under the law, an employee must exhaust all annual, vacation, personal and/or sick leave which is available to the employee, unless the employer waives this requirement. The DVLL provides that employers must keep all information relating to the employee s leave confidential. Moreover, employers may not discharge, demote, suspend, retaliate or in any other manner discriminate against an employee for exercising his or her rights under the law although an employee entitled to leave under the law has no greater rights to continued employment or to other benefits and conditions of employment than if the employee was not entitled to leave under the law. To address this relatively new law, employers should consider amending their current policies and procedure to include the rights set out in the DVLL and specifically detail whether the leave is with or without pay, what type of notice and documentation the employer will require before granting such leave outside of situations involving imminent danger, and whether the employer will require the employee to exhaust all other leave available before utilizing leave under the DVLL. Conclusion Many employers today still remain puzzled or ignorant as to how recent legislative changes will ultimately affect them or their businesses. For this reason, prudent employers should take it upon themselves to be vigilant and stay abreast of upcoming legislation that could affect their obligations under the law. SLK_TAM: # v6 20