The number of I-9 audits multiplied over the past decade, rising from almost none—just three in 2004—to 500 in 2008 and 3,004 in 2012.
Employers should pay attention accordingly, as the fines for substantive and procedural violations of the Immigration Reform and Control Act (IRCA) can add up quickly, Daniel Brown, an attorney with Fragomen in Washington, D.C., said on March 12, 2013, at the Society for Human Resource Management’s 2013 Employment Law & Legislative Conference.
Penalties
For knowing violations, IRCA penalties range from:
For the first time, the U.S. Equal Employment Opportunity Commission (EEOC) has released a table indicating the type of discriminatory action alleged by statute, and it is a treasure trove of information.
Unsurprisingly, discharge claims led the pack under the three main EEO laws—Title VII, the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).
In the dysfunctional world that has become the nation’s capital, something as rare as a unicorn racing across the National Mall has appeared—lawmakers on both sides of the aisle calling for agreement on comprehensive immigration reform.
On Jan. 28, 2013, a bipartisan group of eight senators announced the framework of their legislative direction with four pillars:
In a final rule published in the Jan. 25, 2013, Federal Register, the U.S. Department of Health and Human Services (HHS) altered the definition of “breach” under the Health Insurance Portability and Accountability Act (HIPAA) Privacy, Security and Enforcement Rules.
The rule implements the Health Information Technology for Economic and Clinical Health Act (the HITECH Act), which amended HIPAA.
One surprising result of the Patient Protection and Affordable Care Act (PPACA) may be that lower-paid employees hope their employers will offer no or unaffordable health insurance, according to John Woyke, an attorney at Brody and Associates in Westport, Conn. That way, they’ll qualify for “pretty generous” subsidies to buy coverage on health care exchanges, he said during a Jan. 16, 2003, firm webcast.
Subsidy Eligibility
Among the numerous Patient Protection and Affordable Care Act (PPACA) terms that have left employers scratching their heads, few are as puzzling as what constitutes “affordable” health care.
The U.S. Equal Employment Opportunity Commission (EEOC) put all its cards on the table in its new strategic enforcement plan, which the commission approved Dec. 17, 2012. The plan noted that the commission will focus enforcement efforts on hiring, pay and harassment.
So there shouldn’t be much guesswork among employers in prioritizing their EEO compliance efforts for 2013 or, theoretically, for the next four years covered by the plan.
Family and Medical Leave Act (FMLA) compliance is difficult and annoying, said Mark Oberti, an attorney with Oberti Sullivan LLP in Houston, at the National Employment Law Institute’s Annual Employment Law Conference in Arlington, Va., Nov. 16, 2012.
The U.S. Department of Labor’s FMLA regulations often aren’t much help, as they rarely make it clear when an employer may fire someone, he added.
Oberti outlined 12 compliance strategies for employers:
Just after the nation endured one “superstorm,” it now faces another: the fiscal cliff.
Unusually severe storms like Hurricane Sandy can result in unusual working arrangements that raise out-of-the-ordinary wage and hour questions.
Suppose employees volunteer to perform recovery services for employers. That may sound nice, but “the Fair Labor Standards Act (FLSA) does not permit employees to volunteer unpaid time to the employer under any but the narrowest of circumstances,” Lawrence McGoldrick, an attorney with Fisher & Phillips in Atlanta, told SHRM Online.
Striking down the Defense of Marriage Act (DOMA) as unconstitutional Oct. 18, 2012, the 2nd U.S. Circuit Court of Appeals noted that the law “has varying impact on more than a thousand federal laws.” That includes numerous federal employment laws, as the AFL-CIO noted in a friend-of-the-court brief filed in the 2nd Circuit case.
Edie Windsor, 83, challenged DOMA after the federal government taxed her more than $363,000 when her spouse, Thea Spyer, passed away in 2009. Windsor and Spyer first met in 1963, married in Canada in 2007, and lived in New York.
Many health care reform law changes kick in during 2013 and 2014, assuming the law isn’t repealed or amended. Speaking Oct. 16, 2012, at Groom Law Group’s annual employee benefits seminar in Washington, D.C., attorney Christy Tinnes provided Pension Protection and Affordable Care Act (PPACA) checklists for the next two years.
2013
New provisions highlights:
The Form I-9 is on the verge of the first substantive change in 25 years, according to Mary Pivec, an immigration attorney with Williams Mullen in Washington, D.C., but its release date is a topic of some debate.
Kevin Lashus, an immigration attorney with Jackson Lewis in Austin, Texas, told SHRM Online that he is “guessing that the form will be finalized by the end of the calendar year and will be released for use at the beginning of January 2013.”
Because a scheduled federal budget “sequestration” is approaching in January 2013, the Office of Management and Budget (OMB) and the U.S. Department of Defense (DOD) issued separate guidance notices on Sept. 28, 2012, to address questions about whether Worker Adjustment and Retraining Notification (WARN) Act notices needed to be issued just before the presidential election.
With little fanfare, the one-year-old Consumer Financial Protection Bureau has become the chief enforcer of the Fair Credit Reporting Act (FCRA) and has issued revised FCRA forms employers and consumer reporting agencies must start using no later than Jan. 1, 2013.
A labor dispute that has lasted for three months in Milwaukee pits union organizers against a company that fired workers who were seeking to organize, including employees who failed to document that they were eligible to work.
Palermo’s Pizza said it was merely complying with immigration laws. Activists for the workers have organized a strike and boycott against the company, saying that the terminations amounted to unlawful union busting.
Worker Concerns
Only in the government would a strategic plan be adopted in order to develop a strategic enforcement plan, which was the case when the U.S. Equal Employment Opportunity Commission (EEOC) adopted a strategic plan earlier this year.
On Sept. 4, 2012, the agency released a draft strategic enforcement plan, highlighting the agency’s national priorities:
In yet another decision likely to face resistance from employers if appealed to the federal circuit courts, the National Labor Relations Board (NLRB) on July 30, 2012, ruled that the common employer practice of prohibiting employees from discussing ongoing investigations violates employees’ right under the National Labor Relations Act (NLRA) to engage in concerted activity. The ruling applies to union and nonunion employers since both are covered by the NLRA’s protection of concerted activity among any employees.
