By: La Toya Palmer – 5/29/14
Employers should audit their I-9 employment eligibility verification forms at least once a year. I like to suggest mid-year, late May or early June, so that if the process needs to be tweaked or an issue is identified, the employer can self-correct early on. The United States Citizenship and Immigration Services (USCIS) enforces employer compliance with I-9 requirements. To ensure your company is in compliance remember these five “Do’s and Don’ts.”
- DO require all new hires to fill out a completed and current I-9 form on their first day of work. Always check to make sure that the employee signed the form to void possible penalties.
- DON’T ask an applicant to complete an I-9 prior to making a job offer. Collecting this information prior to making an offer can expose employers to potential discrimination claims made by disgruntled applicants who didn’t get the job.
- DO establish a consistent procedure for your I-9 process completion. Make sure that your hiring managers are educated on that process and understand the importance of following it.
- DON’T ask the new hire to bring in certain types of documentation or for more documents than the I-9 requires. Let the employee look at the requisite documents and make their own decision regarding which form of documentation they will bring.
- DO make and retain copies of all I-9 documentations in a file separate from the rest of the personnel files. Employers should keepI-9’s and supporting documentation for three years after the new hire’s start date or one year after his or her termination date, whichever comes later.
Non-compliance with I-9 regulations can prove costly for employers, with fines for poor documentation going upwards to $1,100 per form violation. In addition, knowingly hiring an illegal immigrant has a civil penalty of $16,000 for each worker. These costly fines can be avoided by simply conducting a mid-year check-up to audit your I-9 forms and ensure you are in compliance.
By: Bill Pilchak – 5/27/14
In approximately 2000, a labor/employment lawyer turned VP of HR told us that his then-employer, a Metro-Detroit based major manufacturer and automotive supplier was “getting out of California” because of the regulatory and litigation climate. Anyone doing business there knows that California employees have rights found nowhere else in the country. Class action wage hour suits are rampant and at times nearly indefensible. (For example, if employers cannot prove that employees working remotely – such as in delivery trucks- actually took the breaks to which they are entitled, they can be sued.) So, when the newswires reported on April 29 that Toyota was moving its US headquarters from California, where it has been located since 1957, to Plano, Texas, I checked the website of our colleague’s former employer. As expected, of 23 facilities, not a single one is presently located in California.
I hadn’t realized that other major companies were following suit until the Toyota announcement on May 2. Reuters’ news story reports a number of companies that have exited California, including all three major Japanese car makers: Nissan in 2006 (to Tennessee); Honda in 2013 (to Ohio); and now Toyota in 2014. Reuters also reports that in February, 2014, Occidental Petroleum Corp. said it would move from Los Angeles to Houston. In 2009, power company Calpine Corp. left San Jose for Houston and in 2006 engineering company Fluor Corp. relocated to the Dallas area from Orange County.
When reading the news accounts, one must be aware that Toyota and others cannot be as candid as they might wish as to their reasons. When Boeing announced that it was opening a plant in employer-friendly South Carolina, the federal government (via the NLRB) commenced legal proceedings that were eventually dropped. It is not impossible that a California agency would contend that Toyota’s departure is in “retaliation” against the deluge of discrimination and other statutory claims it faced there – and won’t face in Texas. Theoretically, employees losing their jobs because they won’t or can’t move to Texas could sue because the move is in retaliation for all the claims Toyota faced.
Accordingly, Toyota’s message is somewhat coded. Still, Toyota admitted that it never considered remaining in California. In one respect the company said, “California didn’t work out for a number of reasons, especially the distance from our U.S. manufacturing operations.” To an extent, that begs the question: Why would Toyota build its plants in Mississippi, Kentucky, Texas, Indiana, Alabama and West Virginia, instead of near its HQ in California which is also eminently closer-by-air to Japan? Wouldn’t there be a steady stream of traffic as manufacturing, quality and safety executives based in Japan visit US plants?
In some respects, Toyota’s message was more candid: Deflecting the suggestion that Toyota moved in response to an overture from outgoing Texas governor, Rick Perry, Toyota cited a “friendly business climate” as a primary reason. Toyota’s chief executive for North America, Jim Lentz, told Reuters “Our decision was not based on the dollar amount we received,” but rather on a friendly overall business climate and certain advantages for Toyota employees, from affordable housing and shorter commutes to the absence in Texas of a personal income tax.”
Read what you want into the term “friendly business climate,” but personally, I suspect that means the same regulatory and litigation climate that caused our colleague’s company to leave California chased Toyota from the state.
Torrance mayor Frank Scotto made comments at a press conference that will resound with Michiganders. He said his son-in-law works for Toyota, so he faces the prospect of having to travel to Texas to see his daughter and grandchildren.
Welcome to our world, Frank. Not only have my son and daughter left Michigan, but nieces and nephews have as well, at least in part because of Michigan’s not-as-bright prospects and the lure of jobs elsewhere. When companies set up shop in the US, whether landing here from overseas or fleeing California, Michigan faces an uphill battle attracting them because of its gold-plated civil rights and whistleblowing laws and workers’ rights mentality. States with workers more focused on getting the job done, like Texas, fare better.
It will be difficult to “dismantle” the statutory framework we have created in Michigan, although passage of the Right To Work statute illustrates that dramatic change is not impossible. However, expect howls of protest at any reform of civil rights statutes. Still, we have learned enough over the last several decades to propose meaningful reforms that will stop abuses while preserving important civil rights. For example, the whistleblower statute is so often being used to extort employers, that meaningful reform is warranted and likely possible. But, that’s a matter for a future blog.
By: Dan Cohen
How many times did your parents praise you for a good deed? And how many times have we, in turn, encouraged our own kids to do a good deed? Random acts of kindness are good for the soul and are important to society. When our kids hold doors open for others, pick up a piece of trash, give their seat up for another, or help push a neighbor’s car out of a snow bank, others take notice. “What a nice young man” people say. “You didn’t have to” say others.
In my world of employment and labor law, an employer’s good deeds do not go unnoticed either. Unfortunately, they tend to be noticed by employees looking to take advantage of a situation. Business owners and human resource directors, who have worked with me over the years, have probably heard me tell them not just once that “no good deed goes unpunished.”
Let’s take a simple example: One of your employees comes to you, down on his luck, his wife just lost her job. Worse, his wife had recently injured her knee skiing and was scheduled for reconstructive knee surgery. Your employee asks to take time off work to comfort his wife and tend to the kids while his wife recuperates from surgery. You naturally feel bad for your employee and approve his time off. You are concerned that your employee has exhausted his PTO days and will really struggle financially given the loss of both incomes. You decide to continue his salary, and when you notify your employee, he is grateful, and you feel really good about your decision.
When your employee returns to work three weeks later, news of your compassion spreads like wildfire. Over the next several weeks, you receive requests for time off from others who have also exhausted their PTO days. You are now faced with a conundrum: Do you continue their pay as well or do you explain that you view their situations differently and you are not inclined to continue their pay? Of course, your decision could place your business at risk if the “other employees” are in protected classifications, and prepared to make a claim of disparate treatment.
So the next time you want to do a good deed at work, you must evaluate how it is going to be used against you. In today’s litigious society, employers should resist the temptation to deviate from their policies to help an employee out in such situations. Others are watching and looking for opportunities to exploit your generosity. So, remember when it comes to your business, leave your good deeds at the door when you arrive at work and stick to the published rules and policies.
By: La Toya Palmer and Bill Pilchak – 5/15/14
On May 2, 2014, in its sixth annual Law Day celebration, Pilchak & Cohen again hosted students from Rogers Elementary School of the Pontiac School District for lunch, education, and a mock trial. The Honorable Cynthia Walker, Judge of the 50th District Court, served as guest speaker. Law students from Cooley Law School assisted LaToya Palmer and Bill Pilchak in the Mock Trial program, assuming roles usually played by Dan Cohen, who was representing P&C at the semi-annual Worklaw® Network meetings and Rhonda Armstrong, who was celebrating a milestone birthday in a warmer climate. This year’s event hosted 45 students; a capacity crowd for our firm’s classroom/law library.
An important part of the program is illustrating to the students how doing well in school translates into personal success later in life. The program highlights how reading, writing, speaking up in class, and learning while navigating “the rules,” eventually become skills that are valuable in society. Students are generally surprised to learn that our firm earns its revenue by reading the law and writing briefs and other material on behalf of our clients.
The judge, attorneys, and law students also shared their employment histories on their path to their legal careers. All demonstrated to the students how working diligently in every job can either fund one’s education and dream or result in personal growth, community respect and financial rewards. The program is designed to show how early obstacles, such as broken families, health issues, and poverty have been overcome on the lawyers’ and judges’ respective paths: sometimes from “the projects” to the podium.
The 50th District Court in Pontiac, actually a client of our firm, has been a long-time supporter of the firm’s Law Day program. Judge Walker spoke at the event for a fourth time. Judges Preston Thomas and Rhonda Fowlkes Gross of the 50th District Court are past participants. Several years ago, Judge Thomas offered a personal anecdote about a member of the community providing help with his tuition, demonstrating how funding will often take care of itself if the students strive academically.
For the attorneys and judges, the best part of the program is often the questions posed by the students. For example, this year and in the past, the students have asked:
- Why isn’t it plagiarism when attorneys quote legal decisions in briefs?
- Could Pilchak & Cohen turn legally down a client on the basis of his/her religion?
- What happens when a lawyer commits a crime?
- What happens if a person breaks the law while doing something good, like running red lights while taking someone to the hospital?
- Can someone be a lawyer if he/she is an illegal alien?
- And the first question asked this year: How much do you make? (Answer: enough so that good attorneys generally do not have money worries.)
Students sitting as a jury, decided a First Amendment mock trial by a fictitious rapper, James Jammer, who was excluded from a Malaysian Flight 370 benefit concert, because of his controversial songs and lyrics, including: “Kick That Puppy Again, Sucka,” “Don’t Bother ME with No Haiti-Tragedy,” and his latest song, “Plane Malaysian- Poof It’s Gone- What an Occasion.” The jury decided that the government was not liable for violating Jammer’s First Amendment rights, when it did not allow him to sing at the public amphitheater because there was a legitimate fear that his Malaysian plane song would cause civil unrest.
Pilchak & Cohen is honored to say that the firm’s law day program has been recognized by the Oakland County Bar Association. In 2012, the firm received the Leon Hubbard Community Service Award for its efforts in support of diversity in the legal profession for developing and continuing the event.
By: Dan Cohen – 5/13/14
I recently attended a labor and employment conference in Philadelphia along with about 40 other Worklaw® Network attorneys from around the U.S., Canada and Europe. A distinguished panel was assembled to discuss the aftermath of the NLRB’s Northwestern University decision: three representatives from colleges, an NLRB Regional attorney and retired NFL coach, Dick Vermeil. You will recall from my March 17th BLawg post that the NLRB Regional Director in Chicago held that football players at Northwestern University were employees, who could vote in a union election. With one exception (and I’ll give you one guess who), the panelists disagreed with the decision. While I personally agree with the panelists who commented that the value of a full scholarship to Northwestern ($76,000 annually), including the benefits and the opportunities for the players − should be more than adequate for the student athlete; however, I want to focus on one panelist’s comment that the decision lacks common sense and logic.
There is no better way to do this than by exploring the implications of the decision, assuming it stands. Some of you might think this is far-fetched, but given the underlying premise that scholar athletes are actually employees of the university, I beg to differ.
- Because the appeal process takes time, many if not all of the players who cast their votes will be gone by the time the union could become certified as the bargaining representative of the football players. Kain Colter , the poster child of the College Athletics Players’ Association, has completed his football career at Northwestern. His former teammates could be done with football as well. To the extent a college athlete is an employee, he/she is more akin to a “temporary” worker. While unions can organize “temps,” they have not historically sought to represent “temps” because of the temporary nature of the work;
- Northwestern would have its hands tied at the bargaining table since the NCAA currently prohibits pay to college athletes. Quite frankly, if the union made economic proposals that included compensation for the football players, l think Northwestern would be within its right to say “we wish we could agree on a compensation plan, but the last time we looked, the NCAA prohibited us from paying scholar athletes”;
- As it has done in the NFL, the Union could propose practice time limitations and limits on how many hours the team can practice in full pads. The difference is that in the NFL, all 32 teams play by the same rules. So, if the Seattle Seahawks can only practice 10 hours a week, the Detroit Lions must limit their practice time to 10 hours as well; even though we all know the Lions need more practice than the Seahawks. Northwestern could find itself at a competitive disadvantage since its chief rival, Illinois, and the other Big Ten schools, would not have to play by the same rules;
- Since Unions tend to propose and insist on multiple job classifications, I could envision separate classifications for skilled players and lineman. There could even be offensive and defensive classifications. Will Northwestern receive a grievance from a receiver or a tight end if it runs a tackle eligible play or if it has someone play both ways?
- The Regional Attorney for the NLRB found that coaches exercise a lot of control over the players at Northwestern, which convinced him they were properly categorized as employees. It sure sounds like the Board would find members of the band, cheerleaders, and most every other college athlete to be employees. Let’s face it, in addition to following the rules, members of the marching band also practice, travel to games, and must meet certain academic standards. At some universities, there is competition within the marching band in terms of who gets to march out on the field as opposed to just sitting in the stands. The band director probably makes that decision. How is this any different? And, what about students on academic scholarships? Might they also be employees using the NLRB’s logic?
- As employees, colleges would need to cover the players on their workers compensation policies, would pay unemployment and other taxes, and could be required to pay overtime. The student athletes would likely be taxed on the value of their football scholarships too. Under the Affordable Care Act, the University might even be required to provide affordable health care to the scholar athletes to avoid pay or play penalties. My guess is that tuition hikes will be necessary to cover all these additional expenses.
What about protected concerted activity? Imagine the wide receivers collectively refusing to run pass routes over the middle because of “safety” concerns (no pun intended). Most coaches would bench a wide receiver or even send him to the showers for doing this. Some might suspend or even throw protesting wide receivers off the team. By definition, this sounds a lot like protected concerted activity to me. Of course, with the NLRB’s recent history of regulating the non-union workplace, a Board Charge technically could be filed by a player regardless of whether the Union was on the scene or not.
With the upcoming legal debates surrounding the wonderful game of college football that I love, it is my opinion that we need a dose of common sense in order to maintain the integrity of the game.