National Worker ID Card Expected to Stir Up Immigration Debate

Due to the increased enforcement of fining employers who hire illegal workers, Sen. Charles E. Schumer (D-N.Y.), the new chairman of the immigration subcommittee, has proposed a national worker identification card for all Americans to help ensure the work eligibility of employees. The “forgery-proof” ID card would contain the individual’s fingerprints and other biometric data so that employers could easily depict workers who are authorized to work in the United States. According to Senator Schumer, the worker ID card would combat future illegal immigration: “The ID will make it easy for employers to avoid [hiring] undocumented workers, which will allow for tough sanctions against employers who break the law, which will lead to no jobs being available for illegal immigrants, which will stop illegal immigration.”

The idea of a national worker ID card is embraced by some business and community organizations. However, it has touched off fears among some labor activists and the ACLU about civil rights violations and a “big brother” intrusion into private lives. Critics also cite the high costs that the ID card would involve as well as the difficulties in monitoring the nation’s 26 million employers for compliance with the systems. These opponents believe the best way to control the hiring of illegal workers is through enforcement of wage and labor laws, as well as strict fines to employers who hire those not authorized to work in the United States.

A Schumer aide said last week that the senator would probably present the worker ID card idea when he holds a hearing later this summer on employee verification systems.

Proving Causation in Age Discrimination Cases More Difficult Now

In Gross v. FBL Financial Services (U.S. Supreme Court 06/18/2009) , employee Plaintiff sued claiming that his demotion was in violation of the Age Discrimination in Employment Act (ADEA), and won a jury verdict. The 8th Circuit reversed on the ground that the jury had been improperly instructed under the standard established in Price Waterhouse v. Hopkins, 490 US 228 (1989). [The 8th Circuit held that the instruction was in error -- not because the employee was barred from using a mixed-motive analysis, but that he could only do so if he had "direct evidence" of age being a factor in the decision].

The five-justice majority of the U.S. Supreme Court, without quite overruling Price Waterhouse, held that it would not extend the decision that an employee could show employment discrimination if he or she could show that age was a motivating — not determining — factor in the adverse employment action.

In stopping down the focus of proof of causation in ADEA cases to a rigid “but for” standard, which had previously been rejected by every U.S. Court of Appeals, the U.S. Supreme Court said:

“[T]he ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the ‘reason’ that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (1993) (explaining that the claim ‘cannot succeed unless the employee’s protected trait actually played a role in [the employer's decision-making] process and had a determinative influence on the outcome’ (emphasis added)). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision . . . We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”

The DISSENT argued that it was “particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction.”

The bad news is that this case buries Price Waterhouse for all intents and purposes, not just for the ADEA, but section 1981, Title IX and other employment discrimination cases not governed directly by Title VII. What it means now is that it has become more difficult for plaintiffs to prove causation under the ADEA.

Personal Appearance, Dress and Groom Issues in the Work Place

Generally, your employer is allowed to require you to abide by its dress and grooming policies in order to maintain a desired company image, as long as these policies serve legitimate business interests. However, you should be aware of limits on the grooming standards that your employer may impose on you.

Recently, in Lord Osunfarian Xodus v. The Wackenhut Corporation, No. 07 C 1431 (N.D. Ill. April 24, 2009), an applicant claimed his long hair was linked to his religious beliefs.  Specifically, the applicant for a security guard position claimed that he was denied a job because he refused to cut his dreadlocks.  The plaintiff asserted that his religious beliefs – Rastafarian/Hebrew Israelite – prohibited him from cutting his hair.  The Defendant corporation moved for summary judgment, arguing that the plaintiff never even mentioned his religious beliefs during his job interview.  However, the federal district court held that the plaintiff had stated a colorable case of religious discrimination because even though the plaintiff did not specifically identify his religion during the interview, he did state that he refused to cut his hair because of his “beliefs.” The court explained that a claimant is not required to identify a particular religion in order to prove religious discrimination. What it means for you — as an employee — is that once you introduce a concern that you cannot engage in certain conduct because of your belief system, it will be incumbent upon your employer to explore this issue and find out why.

In Burchette v. Abercrombie & Fitch Stores, 106 FEP Cases 266 (S.D.N.Y. 2009), the Southern District of New York reached a similar conclusion in allowing a plaintiff’s race discrimination claim to go forward . In Burchette, the plaintiff, an African-American female, claimed she suffered race discrimination when she was ordered to remove blonde highlights from her hair. When the employee asked if she could color all of her hair blonde, she was told she could not because it was not natural. According to the employee, Caucasian employees were allowed color their hair and not required to strictly comply with the policy. The employer sought to dismiss the case on grounds that the employee could not state a claim. The court denied the motion and allowed the case to proceed. What it means for you — as an employee — is that you may have a claim if your supervisor is not correctly applying company policies and making exceptions in appropriate cases. Furthermore, in the event a dress or grooming policy differentiates between male and female employees, your employer needs to make sure that the policy does not disproportionately impact one group more than the other.

Form I-9 Remains Valid Beyond Current Expiration of 06/30/2009

On June 26, 2009, the United States Citizenship and Immigration Services announced that the current Employment Eligibility Verification Form I-9 (Rev. 02/02/09) linked below will remain valid for usage beyond its current expiration date of 06/30/2009 by employers in verifying the employment eligibility of employees.

Employment Eligibility Verification Form I-9

Supreme Court Holds City Violated Title VII by Rejecting Racially Disparate Test Results

In Ricci v. DeStefano, the conservative justices on the United States Supreme Court held in a 5-4 decision that the City of New Haven violated Title VII by discarding the results of a firefighter promotion test where white applicants fared disproportionately better than other applicants.
 
In Ricci, the New Haven Connecticut Fire Department administered civil service examinations for applicants for the positions of captain and lieutenant.  Of the 118 firefighters who took the exam, 26 were African-American, 23 were Hispanic and the rest were Caucasian.  Of that applicant group, no African-Americans and only 2 Hispanics scored well enough to be eligible for promotions. 

The test’s racially disproportionate results led New Haven to question whether it should validate the results.  The city, of course, found itself in a “damned if you do, damned if you don’t” position:  certify the test results, and face Title VII disparate impact litigation from minority applicants; fail to certify them, and face Title VII reverse discrimination litigation from the white officers who passed but were denied a promotion.  The city opted for the latter course, and, as expected, the white firefighters filed a reverse discrimination lawsuit.  The city prevailed on summary judgment at the district court level, and the Second Circuit affirmed.
 
The Supreme Court reversed, holding that the City’s action, in discarding the results of the examination, violated Title VII, in that it was “intentional discrimination” on the basis of race or “disparate treatment,” which is specifically prohibited by the statute.  The court noted that despite what otherwise would have constituted a “prima facie” showing of disparate impact race discrimination, several defenses were available to the city–namely that the exam at issue was job related, consistent with business necessity, and there existed no equally valid, less discriminatory alternative that suited the city’s needs but was not adopted. The Court went on to state that fear of litigation alone cannot justify an employer’s reliance upon race to the detriment of individuals who passed the examination and qualified for promotions.  Furthermore, before an employer can discard such an examination, it must have “a strong basis in evidence” to believe that it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action. 
 
Ultimately, the Ricci decision only represents a small victory for employers (despite the positioning here that held against the city/employer).  Employers can now take a somewhat more confident stand in backing test results that may demonstrate some disparate impact, so long as the test was objective and no other less discriminatory alternative exists.

Nevertheless, you — as an employee — still have rights. If you believe that you have been discriminated against or subjected to disparate impact treatment, please contact an employment attorney immediately.

Pennsylvania Mini-COBRA Laws

The Pennsylvania mini-COBRA law, signed by Governor Rendell on June 10, 2009, requires small employers (with 2 to 19 employees) who sponsor group medical insurance to offer employees and their dependents who lose those benefits on or after July 10, 2009, the opportunity to buy up to nine months of COBRA continuation coverage.  Under Federal law, COBRA is required only for employers with at least 20 employees. 

The 65% reduction in COBRA premiums under the Federal stimulus law, the American Recovery and Reinvestment Act of 2009 (ARRA), also applies to mini-COBRA benefits.  Employees involuntarily terminated between July 10, 2009 and December 31, 2009, may take advantage of both mini-COBRA and the 65% premium reduction.  Unlike the entitlement to the ARRA premium reduction, Pennsylvania mini-COBRA will not expire at the end of 2009. 

There are several differences between Pennsylvania mini-COBRA and Federal COBRA:

Pennsylvania mini-COBRA, for example, applies to employers with 2-19 employees, whereas Federal COBRA applies to employers with 20 or more employees. Pennsylvania mini-COBRA provides continuation coverage for 9 months, but Federal COBRA provides continuation coverage for at least 18 months. To take advantage of Pennsylvania mini-COBRA, the individual must have been covered for at least 3 months, and for Federal COBRA, the individual is eligible if he or she is covered on the day of the qualifying event. Additionally, Pennsylvania mini-COBRA applies only to insured group health plans, whereas Federal COBRA applies to insured and self-insured group health plans. Finally, Pennsylvania mini-COBRA allows the employer to charge up to 105% of the group rate, and Federal COBRA allows the employer to charge up to 102% of the group rate.

A right to Pennsylvania mini-COBRA is triggered if one of these Qualifying Events occurs on or after July 10, 2009:  voluntary or involuntary termination of employment or reduction in hours; dependent’s loss of eligibility; death of the covered employee; or the employee’s entitlement to Medicare.

To be a Qualified Beneficiary under mini-COBRA, an individual must be an enrolled employee (or his/her dependent) who was covered under the employer’s group medical plan for three months before the event; not be Medicare-eligible; and not be eligible for, or covered by, another private group health plan.

Following a Qualifying Event, employers subject to mini-COBRA must notify each Qualified Beneficiary (and the insurer) within 30 days of the event.  The Qualified Beneficiary has 30 days after receiving notice in which to elect mini-COBRA.  If continued coverage is elected, the employer must notify the insurer within 14 days.

Notice may be based on the model notices provided by the U.S. Department of Labor (DOL), but it must be modified to conform to the provisions of the Pennsylvania law.  The Pennsylvania Insurance Department and Department of Labor & Industry are working to have model notices available as soon as possible. 

Insurers must provide notice of the new mini-COBRA law to policyholders by August 24, 2009.  Group policies renewed or issued after June 10, 2009 will include a description of mini-COBRA rights. 

If you believe that you are a Qualified Beneficiary, please make sure that your employer discuss with you the obligation to provide Pennsylvania mini-COBRA and that you receive a mini-COBRA election notice from your employer.

What Employees Should Know About Their Rights Under the Americans with Disabilities Act Amendments Act (“ADAAA”)

Many of you know that the ADA Amendments Act (“ADAAA”) took effect on January 1, 2009. But some of you may not be aware of its significance. To put it plainly, under the amendments to the ADA, more employees are now protected from discrimination based on disability because more employees may now be considered disabled and therefore, eligible for an accommodation.

The “Old” ADA:

Under the ADA, the term “disability” meant with respect to an individual: (a) a physical or mental impairment that substantially limits one or more major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.

Prior to ADAAA, the Supreme Court required lower courts to apply a tough standard in determining if a plaintiff was sufficiently disabled to advance an ADA lawsuit. Thus, under the ADA’s formerly-applied rigid requirements, certain individuals with some disabilities–including insulin-dependent diabetics, amputees who had prosthetics, persons with bipolar disorders if it was managed with medication, epileptics who managed their condition with medication, and even some persons with cancer–were denied protection.

Now…. the ADAAA:

Before the ADAAA, many disabled plaintiffs faced a Catch-22 – they were either considered not disabled enough to file a lawsuit (and receive ADA protection), or they were too disabled to be qualified for the job in question.

The ADAAA reverses a number of employer-friendly decisions and changes the disability analysis.

As with the ADA, under the ADAAA, for an individual to be considered disabled, he/she still must have an impairment that substantially limits a major life activity. However, now, an individual may be considered disabled even if the substantial limitation is corrected by mitigating measures or even if the individual is not currently substantially limited.

Significant Changes Under ADAAA

Rejection of “mitigating measures” analysis;
Expanded Definition of “substantially limiting” and “major life activities”;
Expanded definition of “regarded as” disabled;
Rejection of “current abilities”

Rejection of Mitigating Measures

Under the ADAAA, an individual may now be covered by the ADA, even if the effects of the individual’s impairment may be corrected by mitigating measures such as medication, prosthetics, corrective surgery, hearing aids, mobility devices, learned behavioral or adaptive neurological modification. The ADAAA requires that the analysis of whether an impairment substantially limits a major life activity be evaluated in the unmitigated state (except that ordinary eyeglasses and contacts may be considered in mitigation).

Expanded Definition of Substantially Limiting

Under the ADAAA, whether an employee has a disability should not demand extensive analysis. The EEOC was directed to change its definition of “significantly restricts” to something that comports with the new broader view.

Expanded Definition of Major Life Activities

The ADAAA expanded several new activities. This includes caring for oneself, sleeping, concentrating, thinking, communicating, and working. Major life activities are also defined specifically to include major bodily functions, such as operation of major bodily functions (e.g., immune system, normal cell growth, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions), lifting, bending, and performing manual tasks. The list is not exhaustive.

Under the ADAAA, an individual may also now be disabled even if the individual’s impairment or condition does not currently substantially limit a major life activity — if it would limit a major life activity when the impairment is active. As such, an impairment that is episodic or in remission (for example, cancer) will be considered a disability if, when active, it would substantially limit a major life activity.

Expanded Definition of “Regarded as” Disabled

The ADAAA expanded regarded-as protection by prohibiting discrimination based on the employer’s perception of mental or physical impairment, even if the impairment is not a perceived or actual disability under the ADA.

Excluded from regarded-as protection are minor transitory impairments, such as those lasting less than six months.

No Reverse Discrimination

The ADAAA clarifies that individuals without a disability cannot pursue a reverse discrimination claim on the basis of not having a disability.

What the ADAAA Leaves Unchanged

The basic definition of “disability” as a physical or mental impairment that substantially limits one or more major life activities.

Requirement to provide a reasonable accommodation including the case-law with respect to the interactive process and assessing reasonableness.

Plaintiff’s burden to provide qualification for position with or without accommodation.

Undue hardship and direct threat defenses.

Necessity for plaintiff to be able to perform the essential functions of the job.

Rules as to medical confidentiality, pre-employment inquiries, pre-employment medicals, etc.

The Bottom Line

Employees, not previously covered by federal law, will now have protection under the ADA as persons with a disability. If you feel you have been discriminated against or retaliated against based on your disability — or perceived disability, please contact an employment attorney in your area for a consultation.

What Every Employee Should Know About His/Her COBRA Rights Under the Stimulus Bill

The recently enacted American Recovery and Reinvestment Act of 2009 (“Stimulus Bill” or “the Bill”), signed into law by President Barack Obama on February 17, 2009, includes several new requirements that will impact the COBRA responsibilities of employers maintaining group health plans. 

If you are an assistance eligible employee whose employment was/is involuntarily terminated between September 1, 2008 and December 31, 2009, the Bill provides for a subsidy of COBRA premiums for a nine-month period.

If you are an employer, the Bill requires certain additional notifications relating to the COBRA subsidy.

A Little Background on COBRA

The Consolidated Budget Reconciliation Act of 1985 (“COBRA”), in relevant part, requires group health plans maintained by employers with 20 or more employees to provide elective continuation coverage to employees and their beneficiaries upon the occurrence of certain “qualifying events.” These events include termination of employment, reduced working hours, death, or divorce.  Continuation coverage is available on a self-pay basis for up to a specified period of time. The time period depends on the circumstances on the qualifying events.

COBRA obligates the administrators of group health plans to provide to health plan participants and their beneficiaries notices detailing the substantive continuation rights and the administrative procedures applicable to the exercise of those rights.

Penalties are imposed on employers for failures to timely provide the required notices or to make COBRA coverage available. 

COBRA Subsidy Under the Stimulus Bill

As previously stated, COBRA does not apply to small health plans where the employer sponsoring the plan has fewer than 20 employees. However, the new government subsidy applies to individuals in states that have “comparable continuation coverage” that apply to smaller companies (often referred to as mini-COBRA laws). That includes employees in New York, New Jersey, Ohio and West Virginia — but not Pennsylvania.

Generally, assistance eligible employees whose employment is involuntarily terminated are entitled to continuation coverage under COBRA, along with their spouses and any dependent children. Often, such employees do not take advantage of their rights under COBRA because coverage under COBRA is significantly more than the cost to active employees. The Bill helps to mitigate the cost issue by providing a subsidy for COBRA premiums for any “assistance eligible individuals,” who are individuals whose employment involuntarily terminates between September 1, 2008 and December 31, 2009. Assistance eligible individuals include even those individuals who might have previously waived COBRA coverage or let their coverage lapse.

The subsidy is available for up to the earlier of (i) the date that is nine months after the first day of the first month that the subsidy becomes available to the individual or (ii) the end of the assistance eligible individual’s maximum period of COBRA entitlement (which could be 18, 29, or 36 months depending on the circumstances). 

With COBRA subsidy, the government covers 65% of the COBRA premium costs, and assistance eligible individuals pay the remaining 35%. If you are an employee whose employment has been terminated after September 1, 2008, you pay 65% less per month, and to cover the gap, your employer requests tax credits or subsidies from the government. Thus, assuming your COBRA payment was $100 per month, you can now pay your employer $35 rather than $100, and it’s up to your employer to get the remaining $65 from the government.

The government stipend toward COBRA benefits is reduced for those individuals who make more than $125,000 per year and married couples who file joint tax returns and earn more than $250,000 combined. The benefits phase out completely for individuals who make more than $145,000 and for couples filing joint tax returns who earn more than $290,000 combined.

Election Rights 
Recognizing that the original COBRA election period for assistance eligible individuals, who were terminated in 2008, has already ended, the Bill creates an extension of time for the eligible individuals who are not receiving COBRA benefits to elect to receive them. The extended election period began on February 17, 2009, and ends on the 60th day following the day on which the employer provides notice of the extended election right. 

Reimbursement

Assistance eligible individuals who previously paid full COBRA premiums are entitled to be refunded premiums from the entity entitled to reimbursement for the amount they paid in excess of their 35% responsibility or else to receive a credit against future COBRA premiums in an equivalent amount.  The Act includes specific deadlines for providing reimbursements or credits.

Neither the content on this blog nor any transmissions between you and the Post Law Firm through this blog are intended to provide legal or other advice or to create an attorney-client relationship.

In communicating with us through this blog, you should not provide any confidential information to us concerning any potential or actual legal matter you may have.

Survival in These Economic Times for “Smarties”

The Post Law Firm proudly announces the 2009 Asian American Women’s Coalition Annual Meeting and Seminar, during which Ms. May Mon Post will give a presentation on employment and job security tips.

FREE WORKSHOP
Saturday, February 28, 2009
8:30 a.m. – 1:00 p.m. – FREE PARKING
PECO Meeting Room, 2301 Market Street, Philadelphia PA
CLICK HERE for map and directions.

Understand CREDIT IN A MONEY WORLD
Learn HOW TO BECOME AN INVESTOR
Navigate PREPARATIONS FOR RETIREMENT
Acquire EMPLOYMENT & JOB SECURITY TIPS
How to seek HELP AND SUPPORT

featuring
Moderator: Nydia Han, Consumer Reporter of WPVI-TV/6ABC
Keynote Speaker: Steve Sanders, CEO of First Genesis
Remarks: Lucia Bruce, Regional Manager of DOL-Women’s Bureau

Everybody is welcome to this FREE workshop.

Breakfast and lunch will be provided, plus raffle prizes!

CLICK HERE to register online. RSVP date is February 24, 2009.

*Program funded by the POWELL FAMILY FOUNDATION*

USCIS Delays Rule Changing List of Documents Acceptable to Verify Employment Eligibility

On January 30, 2009, the United States Citizenship and Immigration Services (“USCIS”) announced that it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule entitled “Documents Acceptable for Employment Eligibility Verification” published in the Federal Register on December 17, 2008. As drafted, the interim rule strictly defines what are acceptable identity and employment authorization documents for employers to use in completing the requisite Form I-9 employment eligibility verification process.

The implementation of the final rule requiring federal contractors and subcontractors to begin using USCIS’ E-Verify system has been similarly delayed, and federal contracting officers will not begin to insert the new E-Verify clause into federal contracts and solicitations until the interim rule above is first implemented, and not earlier than May 21, 2009.

The implementation delay allows USCIS and the Department of Homeland Security to further consider the rule’s wide–ranging practical impact on both employers and employees.

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The interim final rule will amend regulations governing the types of acceptable identity and employment authorization documents employees may present to their employers for completion of the Form I-9. Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9.

For now, the current I-9 form and accompanying document list (Rev. 06/05/07) remains in effect until at least April 3, 2009.

Neither the content on this blog nor any transmissions between you and the Post Law Firm through this blog are intended to provide legal or other advice or to create an attorney-client relationship.

In communicating with us through this blog, you should not provide any confidential information to us concerning any potential or actual legal matter you may have.