American Staffing Association (05/14/12) Ed Lenz

On May 10, ASA filed comments with U.S. Citizenship and Immigration Services addressing proposed changes to the Form I-9, which employers must use to verify an employee’s identity and to establish that the employee is eligible to work in the U.S. The current iteration of the form is set to expire Aug. 31, and final revisions to the form are expected to be issued this fall. ASA filed comments in response to a public request issued by USCIS in March of this year.

The law requires that the Form I-9 be completed on the “date of hire.” The government considers date of hire to be the date an employee accepts a job offer, irrespective of when the employee starts work for pay. Most staffing firms consider “date of hire” to be the time a job candidate consents to be included in the staffing firm’s roster of temporary employees. The government has long recognized this practice.

The employer section (Section 2) of the current Form I-9 refers to the date “the employee began employment” (i.e., date of hire), but the proposed new form refers instead to “the employee’s first day of work for pay”—which would mean staffing firms would have to wait to complete the employer section of the form until an employee actually starts an assignment.

Lexology (05/01/12) Theodore A. Olsen

Attorneys caution employers against offering different severance benefits to departing employees and recommend that they implement severance pay plans that detail the amount of pay employees can expect. The U.S. Court of Appeals for the Fourth Circuit ruled in Gerner v. County of Chesterfield that different severance pay amounts could constitute an adverse action under Title VII even when lower amounts are offered after the employee’s employment has been terminated. Employers offering different severance terms can face discrimination liability.

JDSupra (05/09/2012)

In Kasten v. Saint-Gobain Performance Plastics Corp., the U.S. Supreme Court altered how complaints are filed by employees under the Fair Labor Standards Act. Courts previously ruled that statutory language indicates that complaints must be filed in writing for employees to be protected by the law’s antiretaliation provisions, but in this case, the court ruled that oral complaints as part of the company’s internal grievance procedure were considered filed and gave the employee protection against retaliation. Experts say employers must pay close attention to the issue because courts are likely to further broaden the scope of filed complaints.