American Staffing Association (03/15/12) Stephen Dwyer

On March 12, the U.S. Citizenship and Immigration Services, an agency of the U.S. Department of Homeland Security, issued guidance stating that staffing firms can sponsor H1-B workers if they can establish a valid employer relationship with the assigned worker, or “beneficiary.” The guidance specifies factors that could lead to a finding of employer status, including “whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e., where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary.”

JDSupra (03/08/2012) Doug Hass

Companies should establish policies that outline how to respond to Social Security Number mismatches, because the penalties for ignoring or overreacting to SSN mismatches are severe. The policies should address how the company will respond to worker requests to change a SSN or legal name in payroll or personnel records. The policies also should address how the company will respond to requests or notifications by courts or government agencies regarding SSN mismatches. Additionally, the policies should address the company’s views on disciplining or letting go of workers for obtaining work using fraudulent paperwork.

If a company learns of a SSN mismatch, it should examine the worker’s Social Security card and compare it with the information in payroll and personnel records. If the information doesn’t match, the company should correct its records and submit corrected W-2, W-4, or other forms to the U.S. Social Security Administration, the U.S. Internal Revenue Service, and other appropriate agencies. If the company’s records do match the information on the worker’s card, the company can use the SSA’s Social Security Number Verification Service to verify the SSN. If the SSA confirms that the worker’s number matches, the company should tell the worker that someone may be using his or her SSN.

Companies should never require a worker to “reverify” their employment eligibility or take any other adverse action against a worker because of a SSN mismatch. To do so could subject the company to substantial liability under the antidiscrimination components of the Immigration and Nationality Act.

BNA Daily Report for Executives (03/14/12) Kevin P. McGowan

At a recent conference, Victoria Lipnic, commissioner of the U.S. Equal Employment Opportunity Commission, said the agency could soon update guidance on companies’ use of arrest and conviction records, noting that a draft would not be released for public comment but would be debated and voted on internally. “Blanket” hiring policies excluding individuals with past convictions could amount to discrimination against black and Hispanic applicant, she said.

Under existing EEOC guidance, employers must consider the nature and gravity of the offense, how much time has passed since the conviction, and the nature of the job, and if disparate impact is shown, Lipnic said, employers must show their hiring policy is related to the job and necessary to the business. She added that employers with blanket policies will be targeted by the EEOC for investigation and even litigation. The fact that employers now have access to more criminal background information via the Web is another reason why the guidance could be updated soon.

Seyfarth Shaw (03/08/12) Joshua M. Henderson

U.S. District Judge Amy Berman Jackson recently upheld in part a rule by the U.S. National Labor Relations Board that requires employers to post a notice detailing employees’ rights under the National Labor Relations Act. The employers’ request to enjoin the NLRB from enforcing the rule until their appeal of the court order upholding the posting requirement is decided was denied by Jackson, who said they had not established that the posting requirement would cause them to suffer irreparable harm. Additionally, Jackson said it was “undoubtedly in the public interest” to enhance employees’ awareness of their rights.

DigitalJournal.com (03/14/12)

In the case Thomas v. Warren County DPW, the court enforced a 2007 amendment to New York’s workers’ compensation law. Under the wage replacement provision of the law, the employer in whose employment the worker sustained the injury must cover all medical costs and the worker’s average weekly wage, including additional wage amounts from other jobs held by the employee. Employers previously could obtain reimbursement for the higher average weekly wage tied to concurrent employment through a state Special Disability Fund, but the amendment eliminated this reimbursement. The court case confirms that employers are still responsible for the higher payment, and they or their insurers must absorb the cost.