A roundup of June’s employment news…
In addition to our recent communication to you on the DOL’s new overtime rules, as well as an update on at-will employee termination in Virginia, we close out the month of June with updates on immigration and the EEOC:
Supreme Court Deadlock on Proposed Immigration Plan
On Thursday, June 23–earlier than anticipated–the United States Supreme Court issued a ruling in the case of United States v. Texas. This was the case in which a number of states, led by Texas, challenged the authority of President Obama to issue executive orders impacting many undocumented individuals in the U.S. by creating a pseudo-safe haven from deportation and creating legal work eligibility. The states argued the President was usurping the role of Congress to make the laws. The Presidency took the position that this type of rule-making was within the executive powers.
The ruling, however, was just one line announcing that the Court was deadlocked 4-4. That meant the decision of the lower court, in favor of the states and against the President, was allowed to stand.
Practically speaking, it means that the effort to expand the concept of deferred action to parents of U.S. citizens and lawful permanent residents (known as DAPA) and create a process for legal employment of such individuals is now effectively terminated. However, the original program of deferred action for childhood arrivals (known as DACA) is not impacted so employers should not take adverse action against existing employees who may have been hired as a result of DACA documentation issued evidencing the ability to work legally in the U.S.
Expiration Date on E-Verify User ID
In other immigration-related news, the United States Citizenship and Immigration Services (USCIS) announced that beginning on August 1, 2016, it will employ a 270-day rule for E-Verify user IDs. If a user ID is not accessed for 270 consecutive days, that user ID will be deactivated. To avoid this result, log into E-Verify at least once every 270 days. If not a heavy user of E-Verify, then mark your calendar for periodic access to avoid this problem.
New Job Interview Guidelines: Ask This, Not That
A new practice advisory was issued in mid-June by the Office of Special Counsel with regard to appropriate lines of questioning during interviews of non-citizens. An employer is allowed to ask a job applicant if he/she will require sponsorship now or in the future (and not run afoul of discrimination based on national origin or citizenship status). The employer may then decline to hire those who require sponsorship. However, the employer should be prepared to establish that this question was asked of all job applicants. Similarly, an employer can ask questions designed to prefer certain classes of non-immigrant visa holders (e.g., STEM OPT students) over other classes of non-immigrant visa holders. However, going too far and asking job applicants detailed questions about his/her immigration or citizenship status may deter individuals who are protected from citizenship status discrimination, such as refugees and asylees, from applying due to a misunderstanding about their eligibility for the position. Thus, the advisory cautions against the level of detailed questioning that could lead to confusion and open the door to discrimination claims. Here is the link to the recently issued advisory: https://www.justice.gov/crt/file/867386/download
Fines For EEOC Notice Posting Violations On The Rise
For years, the EEOC has required employers to post a notice of employee rights under the various anti-discrimination laws the agency administers. This notice stating “Equal Employment Opportunity is The Law” is available at https://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeopost.pdf.
The notice describes the federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability or genetic information. It also explains how an applicant or employee can file a complaint if he/she believes he/she is a victim of discrimination. The notice must be placed in a conspicuous location in the workplace where notices to applicants and employees are usually posted, such as a break room. The EEOC also encourages posting on an employer’s internal website in a conspicuous location. This is an especially good idea for a company where employees telework and do not visit the actual workplace on a regular basis.
Starting July 1, the maximum penalty for violations of this notice requirement increases to $525 from $210. It comes after the penalty was raised from $110 to $210 in 2014. Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, the penalty will be adjusted for inflation annually after 2016.
As the violations of this notice requirement get more and more pricey, employers are advised to ensure they have posted the EEOC notices posted as required.
As always, should you have any questions about these or any other employment law issues, the Labor & Employment team at Woods Rogers is here to help.