E-Verify During the Shutdown

As you likely know, the government has been shutdown due to the inability of lawmakers to reach an agreement on a budget for the United States. Most other employers, however, are open for business and continue to hire new employees. Some of these employers subscribe to E-Verify, the internet-based system used to verify an employee’s work authorization. Because E-Verify is run by the government, it too has been shutdown. So what are employers to do?

Since the shutdown began, employers have not been able to enroll in E-Verify, verify employment eligibility, view or take action on any case, run reports, or edit company information. To complicate the matter, E-Verify’s customer support is also shutdown.

What should you do? Keep a log of all the employees who have been hired during the shutdown. When the government re-opens and E-Verify is back online, run the employee through E-Verify as you normally would. If there was an employee who was run through E-Verify prior to the shutdown and you received a tentative non-confirmation (TNC) or some other interim case status, do not take any adverse action against that employee. The days the government has been shutdown will not count toward the applicable deadline to resolve the TNC or interim status.

Form I-9 Requirements Still Apply. Employers are still required to comply with the Form I-9 rules. Employee’s should complete Section 1 prior to or on their first day of work for pay, and Section 2 should be completed prior to on the third day of work for pay. Employees must still establish that they are authorized to work via acceptable documents.

Stephen J. Quezada

squezada@montyramirezlaw.com

281.493.5529

Perception is Reality – Avoiding the Appearance of Discrimination in Want Ads

What’s in a want ad? In the law, perception is reality. Discrimination suits are often based on circumstantial evidence. One would be hard pressed to find a discrimination suit that contains a “smoking gun.” More often than not, employers terminate employees because they are bad at their jobs. Nonetheless, you should avoid any appearance of discrimination and minimize the risk of receiving a demand letter or lawsuit. This begins with the manner in which you seek employees.

The ultimate goal of an ad is to get the right candidate to apply. Don’t be afraid to make ads catchy or edgy. Be certain, however, to use “protected category neutral” language. Common mistakes employers make are that they use language that indicates a preference for a particular gender or age range.

First, use gender neutral language in your ad. Avoid, “Restaurant seeking waitresses and hostesses.” This implicates that only female applicants are sought and are ultimately who the company wants to hire. Try, “Restaurant seeking wait staff and host staff.” Also, avoid personal pronouns. Use words like “candidate” or “applicant” instead of “he” or “she.”

Second, be mindful of age bias. Age is a protected category for individuals over 40. Thus, appearing to have a preference for younger employees could cause a problem. Avoid, “Seeking recent college graduate.” This indicates that the company is seeking to employ someone who is 21-22 years old, and not someone over 40 years of age. Instead try, “Seeking candidates with bachelor’s degree for entry level position.” 

Third, be mindful of combining protected categories. Avoid using language like, “Seeking articulate young lady for receptionist position at a growing construction company.” This language actually poses trouble on multiple fronts. It identifies a preferred age and sex. And, “articulate” can be interpreted to mean, “accent-free” thereby indicating a preference for a particular national origin or race. Instead try, “Seeking receptionist with excellent people and telephone communication skills.”

After the description of the candidate, provide the description of your company and the remaining job requirements. This will help obtain resumes from individuals who are truly interested and qualified, and avoid pitfalls that could lead to trouble down the road.

Stephen J. Quezada

squezada@montyramirezlaw.com

281.493.5529

Deducting from Employee Pay

Employers, particularly small businesses, seek to deduct from employees’ pay for items such as uniforms, cash register shortages, and lost or broken equipment. While it may, or may not, be fair to have such a “you break, you buy” policy, one thing is certain: These practices aren’t always legal, and an employer may be exposing themselves to liability in the form of wages owed, liquidated damages, and attorneys’ fees.

The basics. In order to make a deduction from an employee’s pay, Texas law requires that the deduction be: (1) legal and (2) authorized in writing by the employee. Additionally, a deduction may generally not take an employee’s regular hourly pay rate below the minimum wage ($7.25 per hour), and deductions can never be taken from an employee’s overtime wages. The aforementioned criterion for making a deduction posits the following two questions: (1) What is legal? (2) What is required to be in a written authorization?

Legal deductions. Examples of permissible deductions include: tip credits, meals, lodging, uniforms (if the uniform is truly a uniform, street clothes do not count), and ordinary cash register shortages. Employers are also required to maintain records of any deduction made. Also, if the employer is providing meals, lodging and other facilities, and making deductions for those items, the cost to the employer of those items must be maintained. Routinely, I am asked whether an employer may deduct the cost of providing safety equipment, tools, and other equipment the employee needs to do the job for the employer. Generally, the answer is no because those items benefit the employer. An employer who provides safety equipment and tools for their employees should factor those costs into the cost of doing business.

Written Authorization. In Texas, deductions are generally only permissible when an employee signs an authorization for deductions to be made from their wages. A written authorization for permissible deductions should generally be obtained from all employees. The authorization should include all foreseeable reasons as to why a deduction may need to be made, such as for ordinary cash register shortages. The best practice is to include an authorization as a separate form in a new hire packet. While you may include the deduction policy in your handbook, you should have a separate written and signed authorization from every employee. An acknowledgement relating to the handbook is not sufficient.

Notice this posting uses “generally” and many illustrative examples. This is because wage and hour law, and the law relating to deduction, is quite complex and particular to each employer. If you are making deductions from your employees’ pay, the best thing to do is to consult with an attorney so that the particulars of your business can be evaluated.

Stephen J. Quezada

squezada@montyramirezlaw.com

281.493.5529

Bad Apple? Document Today, Reap the Fruits Tomorrow.

There are two kinds of employers. The one that has been sued and the one that will be sued. The former knows that litigation is not fun. Lawsuits distract from the business and cost thousands of dollars in attorneys’ fees. The ultimate goal in defending litigation–winning summary judgment. The path to victory, however, must start even before the would-be plaintiff’s attorney files the complaint. Defensive documentation is the process where an employee’s performance and behavioral issues are memorialized so that a clear record can be preserved.

Write-ups. Do not be afraid to formally write-up an employee for his or her failures. The employee will not be afraid to sue you when you terminate them. Write-ups should contain detailed facts, not conclusory assertions. Avoid, “Sam is always late.” Instead try, “On October 1, 2013 Sam arrived to work at 8:17 A.M., 17 minutes after his shift began.” Provide the write-up to the employee and have him or her acknowledge it. Write-ups should also contain a description of what counseling was provided to the employee, and also state what warnings were given to the employee.

Contemporaneous documentation of the termination. It is a best practice, if the employee is being terminated for cause, to provide the employee with a correspondence informing them of their termination and the reasons why they have been terminated. Be sure to include every legitimate reason. It is very difficult to go back after the fact and add reasons, and it is even more damaging to find out that one of the reasons was unsubstantiated. Have the employee acknowledge the letter. If they refuse to acknowledge it, try mailing it to their last known address via certified mail return-receipt requested. It is also a best practice to utilize an internal “change in status” form to document/process the termination. Again, this form should also state every legitimate reason why the employee was terminated. If there is not a box to check with an appropriate category, create it. If there is not enough room to count the reasons, add an additional page.

The most important part of this process is to enforce the disciplinary policy equally on all employees. In all forms of documentation you should use clear language and short sentences. Leave nothing to interpretation or conjecture. Simple language is better. Also, proof read before you submit any document to an employee or place the document into a file. Your employment attorney will thank you, and you will thank your employment attorney.

Stephen J. Quezada

squezada@montyramirezlaw.com

281.493.5529

DID YOU KNOW? What You Should Know When You Receive An NIF (Notice of Intent to Fine)

I.  You CAN and SHOULD go to court to fight fines

To avoid a final order, you MUST request a hearing in writing 30 DAYS from the date of the NIF issuance.  Add 5 days to the response time if the NIF was sent via the US Postal Service.  If you don’t request a hearing within 30 DAYS, a Final Order imposing fines will be issued by ICE after 45 days

II. Fines are calculated on a Penalty Matrix

5 factors ICE uses to determine the fine amount:

1.  Size of the business

2.  Good faith compliance efforts

3.  Seriousness of the violation

4.  History of previous violations

5.  Whether the violation involved unauthorized workers

III. You CAN and SHOULD Negotiate the amount of the fine

How you negotiate the amount of the fine:

1.  Review the list of counts, and identify whether each count tis valid

Was a violation imposed even though the I-9 wasn’t legally required?

Was the worker a contractor, and not an employee?

Was the employee subject to the Purge Rule?

2.  Does the count on the notice accurately represent the facts?  

At times, ICE agents impose fines in error, or for the wrong type of violation, or a violation that was already corrected in response to a Notice of Technical Errors, or a similar notice

3.  Negotiate the factors from the penalty matrix

ICE does not always provide an account of what the aggravating and mitigating factors were.

IV. You CAN Appeal 

OCAHO (Office of the Chief Administrative Hearing Officer) is headed by a Chief Administrative Hearing Officer, who supervises and manages the Administrative Law Judges who preside over hearings.  All final agency decisions are subject to Administrative Review by the Chief Administrative Hearing Officer and/or the Attorney General.  OCAHO Judges have been 

All final agency decisions are subject to review in the federal circuit courts of appeal.

Factors OCAHO will use to determine fines on appeal:

1.  Whether the imposed fines are too high

2.  Size of the business

3.  Good faith compliance efforts

4.  Seriousness of the violation

5.  History of previous violations

6.  Whether the violation involved unauthorized workers

7.  Other considerations include, but are not limited, to the business’s ability to pay the fine and the hardship on the business, and the amount of weight given to each factor above.

Jacob M. Monty

Email: jmonty@montyramirezlaw.com

Telephone: 281.493.5529

Website: http://www.montyramirezlaw.com/